Enforcement Guidance on Retaliation and Related Issues

Transcription

DRAFT FOR PUBLIC INPUT - 1/21/2016
EEOC
NOTICE
Number
TBD
Date
SUBJECT:
PROPOSED Enforcement Guidance on Retaliation and
Related Issues
PURPOSE:
This transmittal submits for public input the Commission’s
proposed guidance to update and clarify its position on
retaliation and related issues under EEOC-enforced laws.
This proposed sub-regulatory document would supersede
EEOC COMPLIANCE MANUAL, VOLUME II, SECTION 8:
RETALIATION (May 20, 1998). It is intended to provide the
public with information about how the EEOC may guide its
personnel in processing and investigating charges, making
cause determinations, and considering litigation.
APPLICABILITY:
EEOC enforcement staff and outside stakeholders
EFFECTIVE DATE:
N/A – Proposal for public input
EXPIRATION DATE:
This transmittal will remain available for public input for a
period of 30 days after its publication.
ORIGINATOR:
Office of Legal Counsel
UNSIGNED – DRAFT FOR PUBLIC INPUT
DRAFT FOR PUBLIC INPUT
PROPOSED EEOC ENFORCEMENT GUIDANCE ON RETALIATION AND
RELATED ISSUES
TABLE OF CONTENTS
I. INTRODUCTION …………………………………………………………………1
A. What Is Retaliation?..........................................................................................2
II. ELEMENTS OF A RETALIATION CLAIM ………………………………….5
A. Protected Activity ……………………………………………………………...6
1.
Participation …………………………………………………………………6
2.
Opposition …………………………………………………………………..11
a.
Manner of Opposition Must Be Reasonable …………………………...16
b. Opposition Need Only Be Based on Reasonable Good Faith Belief,
Even if Matter Complained of Not Ultimately Deemed Unlawful ……19
c.
Examples of Opposition ……………………………………………….....25
d. Inquiries and Other Discussions Related to Compensation ……....31
(1) Compensation Discussions as Opposition Under the EEO Laws …..31
(2) Related Protections Under Other Federal Authorities ……………...33
(a) Department of Labor Regulation - Federal Contractors and
Subcontractors ……………………………………………………….33
(b) National Labor Relations Act (NLRA) …………………………….34
3. Range of Individuals Who Engage in Protected Activity………………….34
B. Adverse Action ……………………………………………………………........37
1. General Rule …………………………………………………………………37
2. Types of Materially Adverse Actions ………………………………………39
3. Harassing Conduct as Retaliation ……………………………………….....48
4. Third Party Retaliation …………………………………………………..48
a. Materially Adverse Action Against Another ………………………... 48
b. Standing to Challenge: “Zone of Interests”……………………….... 49
C. Causal Connection ……………………………………………………….. 50
D. Liability ……………………………………………………………………. 57
III. ADA INTERFERENCE PROVISION …………………………………… 59
IV. REMEDIES ………………………………………………………………… 64
A. Temporary or Preliminary Relief ……………………………………….. 64
B.
Compensatory and Punitive Damages for Retaliation ………………. 66
1. Title VII and GINA …………………………………………………….. 66
2. ADEA and EPA ………………………………………………………… 67
3. ADA and Rehabilitation Act …………………………………………… 67
C. Other Relief ……………………………………………………………….. 68
V. BEST PRACTICES ………………………………………………………… 68
A. Written Employer Policies ……………………………………………….. 68
B. Training …………………………………………………………………….70
C. Provide Anti-retaliation Advice and Individualized Support
for Employees, Managers, and Supervisors ………….…………………72
D. Proactive Follow-Up ……………………………………………………….72
E. Review Consequential Employment Actions to
Ensure EEO Compliance …………………………………………………73
ii
I. INTRODUCTION
Effective compliance and enforcement under the federal employment
discrimination statutes depends in large part on the willingness of individuals to
challenge discrimination without fear of punishment. Individuals rely on the prohibitions
against retaliation, also known as reprisal, when they are complaining to an employer
about an alleged equal employment opportunity (EEO) violation, providing information
as a witness in a company or agency investigation, or filing a charge with the Equal
Employment Opportunity Commission (Commission or EEOC).
This document provides updated guidance to replace the Compliance Manual on
Retaliation issued in 1998. Since that time, the Supreme Court and the lower courts have
issued numerous significant rulings regarding employment-related retaliation. 1 Further,
the percentage of EEOC charges alleging retaliation in the private sector has essentially
doubled since 1998, 2 and retaliation is now the most frequently alleged basis of
discrimination in both the private and federal sectors. 3
This Enforcement Guidance serves as a reference for Commission staff
investigating charges alleging retaliation and related issues under all the statutes EEOC
enforces. 4 It also may be useful to EEOC staff conducting outreach, and to employers,
employees, and practitioners seeking to learn more about this area of the law.
1
Supreme Court decisions handed down after issuance of the EEOC’s 1998 Compliance
Manual that concern retaliation under EEOC-enforced laws include Univ. of Tex. SW Med. Ctr. v.
Nassar, 133 S. Ct. 2517 (2013); Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1
(2011); Thompson v. N. Am. Stainless, LP, 562 U.S. 170 (2011); Crawford v. Metro. Gov’t of
Nashville & Davidson Cnty., Tenn., 555 U.S. 271 (2009); Gomez-Perez v. Potter, 553 U.S. 474
(2008); Burlington N. and Santa Fe Rwy v. White, 548 U.S. 53 (2006); and Clark Cnty. Sch. Dist.
v. Breeden, 532 U.S. 268 (2001). Note: issues related to waivers and releases that might be
retaliatory are not addressed in this guidance.
2
Beginning in fiscal year 2009, charges of retaliation eclipsed race discrimination as the
most frequently alleged basis of discrimination. In FY 2014, retaliation claims were included in
42.8% of all charges received by the EEOC, and 48.4% of the Title VII charges received. See
EEOC
Charge
Statistics,
FY
1997
Through
FY
2014
(Table)
http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm (last visited Jan. 12, 2016).
3
In the federal sector, retaliation has been the most frequently alleged basis since 2008,
and between fiscal years 2009 and 2015, retaliation findings comprised between 42% and 53% of
all findings of EEO violations in the federal sector. See Equal Employment Opportunity Data
Posted Pursuant to the No Fear Act, http://www.eeoc.gov/eeoc/statistics/nofear/index.cfm (last
visited Jan. 12, 2016).
4
The views set forth in this sub-regulatory document represent the Commission’s wellconsidered guidance on its interpretation of the relevant law and a discussion of the principles
with which it will investigate charges and consider litigation.
A. What Is Retaliation?
Retaliation occurs when an employer unlawfully takes action against
an individual in punishment for exercising rights protected by any of
the EEO laws. The EEO anti-retaliation provisions apply to ensure
that individuals are free to raise complaints of potential EEO
violations or engage in other EEO activity without retribution or
punishment.
Retaliation occurs when an employer unlawfully takes action against an
individual in punishment for exercising rights protected by the EEO laws. 5 Each of the
EEO laws prohibits retaliation and related conduct: Title VII of the Civil Rights Act of
1964, 6 the Age Discrimination in Employment Act, 7 Title V of the Americans with
5
Where it appears that an allegation of retaliation may be solely subject to the
jurisdiction of another federal agency or a state or local government, rather than EEOC, the
charging party should be referred promptly to the appropriate agency. For example, claims of
retaliation for union activity should be referred to the National Labor Relations Board. Similarly,
claims of retaliation for demanding wages earned, in the form of withholding overtime pay,
should be referred to the Department of Labor, Wage and Hour Division.
6
Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a) provides:
It shall be an unlawful employment practice for an employer to discriminate
against any of his employees or applicants for employment, for an employment
agency, or joint labor-management committee controlling apprenticeship or other
training or retraining, including on-the-job training programs, to discriminate
against any individual, or for a labor organization to discriminate against any
member thereof or applicant for membership, because he has opposed any
practice made an unlawful employment practice by this subchapter, or because he
has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.
7
Section 4(d) of the ADEA, 29 U.S.C. § 623(d), provides:
It shall be unlawful for an employer to discriminate against any of his employees
or applicants for employment, for an employment agency to discriminate against
any individual, or for a labor organization to discriminate against any member
thereof or applicant for membership, because such individual, member or
applicant for membership has opposed any practice made unlawful by this
section, or because such individual, member or applicant for membership has
made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or litigation under this chapter.
2
Disabilities Act, 8 Section 505 of the Rehabilitation Act, 9 the Equal Pay Act, 10 and Title II
of the Genetic Information Nondiscrimination Act (GINA). 11
8
Section 503(a) (retaliation) and (b) (interference) of the ADA, 42 U.S.C. § 12203(a)
and (b), provide that:
(a) Retaliation. - No person shall discriminate against any individual because
such individual has opposed any act or practice made unlawful by this chapter or
because such individual made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this chapter.
(b) Interference, coercion, or intimidation. - It shall be unlawful to coerce,
intimidate, threaten, or interfere with any individual in the exercise or enjoyment
of, or on account of his or her having exercised or enjoyed, or on account of his
or her having aided or encouraged any other individual in the exercise or
enjoyment of, any right granted or protected by this chapter.
(c) Remedies and procedures. - The remedies and procedures available under
sections 12117, 12133, and 12188 of this title [sections 107, 203 and 308] shall
be available to aggrieved persons for violations of subsections (a) and (b) of this
section, with respect to subchapter I, subchapter II and subchapter III,
respectively, of this chapter [title I, title II and title III, respectively].
9
Section 501 of the Rehabilitation Act, 29 U.S.C. § 791(g) (“Standards used in
determining violation of section”), covering designated federal government applicants and
employees, provides:
The standards used to determine whether this section has been violated in a
complaint alleging nonaffirmative action employment discrimination under this
section shall be the standards applied under title I of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections
501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42
U.S.C. 12201-12204 and 12210), as such sections relate to employment.
10
Although the EPA’s anti-retaliation provision, 29 U.S.C. § 215(a)(3), does not
delineate types of protected activity such as opposition and participation, its language has been
construed to prohibit retaliation for both oral and written complaints, whether made internally to
an employer, or externally to the EEOC or a state/local fair employment practice agency. See
Greathouse v. JHS Sec., Inc., 784 F.3d 105 (2d Cir. 2015) (concluding, consistent with all
circuits to have addressed the issue, that the Fair Labor Standards Act (FLSA), 29 U.S.C.
§ 215(a)(3), which the EPA incorporates as its retaliation provision, prohibits retaliation against
employees who orally complain to their employers); Kasten v. Saint-Gobain Performance
Plastics Corp., 563 U.S. 1 (2011) (interpreting the FLSA anti-retaliation provision to find that
oral complaints may be protected activity, but declining to decide whether internally filed
complaints to management suffice), on remand, 703 F.3d 966 (7th Cir. 2012) (holding that
plaintiff’s oral complaint to his manager was protected activity); Minor v. Bostwick Labs, Inc.,
669 F.3d 428 (4th Cir. 2012) (ruling that internally filed complaints are protected activity under
the FLSA, consistent with the majority of circuits to have addressed the issue).
3
Government or private employers, employment agencies, or labor organizations12
must not retaliate because an individual engaged in “protected activity.” Generally,
protected activity consists of either:
(1) participating in an EEO process, such as providing witness
information; assisting or otherwise participating in any manner in an
investigation, proceeding, or hearing under the EEO laws, including
making an internal complaint to an employer or union; participating in an
employer’s own internal investigation; or filing an administrative charge
or lawsuit alleging discrimination in violation of the EEO laws; 13 or,
11
Section 207(f) of Title II of GINA, 42 U.S.C. § 2000ff-6(f), provides:
No person shall discriminate against any individual because such individual has opposed
any act or practice made unlawful by this chapter or because such individual made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under
this chapter. The remedies and procedures otherwise provided for under this section shall be
available to aggrieved individuals with respect to violations of this subsection.
12
The term “employer” is used throughout this document to refer to all of these covered
entities. The EEOC COMPLIANCE MANUAL, VOLUME II, SECTION 2: THRESHOLD ISSUES,
http://www.eeoc.gov/policy/docs/threshold.html, provides guidance to determine whether a
particular entity is covered under these laws based on its size or other characteristics. Federal
employees are also protected against retaliation under each of the employment discrimination
statutes. See Gomez-Perez v. Potter, 553 U.S. 474, 487 (2008) (inferring a cause of action in the
federal sector for retaliation under the Age Discrimination in Employment Act, and describing §
633 of the ADEA as a “broad prohibition of ‘discrimination’ rather than a list of specific
prohibited practices”); see also Velazquez-Ortiz v. Vilsack, 657 F.3d 64, 72 (1st Cir. 2011)
(“Although [Title VII] contains no parallel [retaliation] prohibition applicable to the federal
sector, this circuit and others have held that various provisions of Title VII operate, either alone
or in concert, to the same effect [as the private sector retaliation prohibition].”); Section 207(3) of
Title II of GINA, 42 U.S. C. § 2000ff-6(e) (incorporating Title VII’s remedies, powers, and
procedures) (citing decisions from the 1st, 4th, 10th, and D.C. Circuits). Although some courts
have held that state and local government employers may have sovereign immunity from
retaliation claims for money damages under Title V of the ADA, see, e.g., Demshki v. Monteith,
255 F.3d 986, 988 (9th Cir. 2001), such employers are still subject to suit by the U.S.
government, which can obtain full relief including damages for the individual. Bd. of Trustees of
the Univ. of Alabama v. Garrett, 531 U.S. 356, 374 n.9 (2001); U.S. v. Miss. Dep’t of Pub. Safety,
321 F.3d 495 (5th Cir. 2003). Therefore it is in the interest of such employers to take the same
care as all others to comply with retaliation prohibitions.
13
Courts often characterize EEO complaints made internally, for example to a company
manager or human resources department, as opposition rather than participation. However, to
date the Supreme Court has explicitly left open this legal question. Crawford v. Metro. Gov’t of
Nashville and Davidson Cnty., Tenn., 555 U.S. 271, 280 (2009) (expressly stating that the Court
was not reaching the question of whether conduct constituted participation in case alleging
retaliation against an employee who spoke out as a witness in an employer’s internal
investigation: “Because Crawford’s conduct is covered by the opposition clause, we do not reach
her argument that the Sixth Circuit misread the participation clause as well.”). Some courts
4
(2) opposing a practice made unlawful by one of the employment
discrimination statutes (e.g., communicating a reasonable belief that the
employer’s activity violates the EEO laws), or engaging in non-verbal acts
of opposition (e.g., resisting an unwanted sexual advance by a supervisor
or refusing to carry out an order reasonably believed to be discriminatory).
•
Additional ADA protection. In addition to retaliation, the ADA prohibits
“interference” with the exercise of rights under the ADA. This additional protection
is discussed in detail infra at § III. 14 The interference provision goes beyond
retaliation to make it also unlawful to coerce, intimidate, threaten, or otherwise
interfere with any individual’s exercise of any right under the ADA, or with an
individual who is assisting another to exercise ADA rights.
II. ELEMENTS OF A RETALIATION CLAIM
A retaliation claim has three elements:
(1) protected activity: “participation” in EEO activity
or “opposition” by the individual to discrimination;
(2) adverse action taken by the employer; and
(3) causal connection between the protected activity
and the adverse action.
expressly reject the view that internal complaints are protected as participation, limiting the
participation clause to administrative charges or lawsuits filed to enforce rights under an EEO
statute, or to include participation in internal investigations only after a charge has been filed.
See, e.g., Townsend v. Benjamin Enterprises, Inc., 679 F.3d 41 (2d Cir. 2012); infra note 20
(collecting EEOC briefs and cases). For a further discussion of the case law and of the
Commission’s broad view of the scope of participation, see infra § II.
14
Section 503(b) of the ADA, 42 U.S.C. § 12203(b); supra note 8.
5
A. Protected Activity
The first question when analyzing a charge of
retaliation is whether there was an earlier complaint or
other EEO activity that is protected by the law (known
as “protected activity”). The “protected activity” must
occur prior to the employer’s alleged retaliatory
adverse action. “Protected activity” may be established
by demonstrating that the individual either
“participated” in EEO activity or otherwise “opposed”
discrimination.
1. Participation
The anti-retaliation provisions make it unlawful to discriminate against any
individual because s/he has made a charge, testified, assisted, or participated “in any
manner” in an investigation, proceeding, hearing, or litigation under Title VII, the
ADEA, the EPA, the ADA, the Rehabilitation Act, or GINA. This protection, known as
the “participation clause,” applies even if the underlying charge is not meritorious or was
not timely filed. 15
Broad Protection, Even if Underlying Discrimination Claim Fails. In order to
ensure that individuals are not deterred from raising alleged EEO violations and to avoid
pre-judging the merits of a given allegation, the Commission takes the position that the
participation clause applies regardless of the reasonableness of the underlying allegations
of discrimination. 16 As an appellate court recognized:
[r]eading a reasonableness test into section 704(a)’s
participation clause would do violence to the text of that
provision and would undermine the objectives of Title VII.
15
See Learned v. City of Bellevue, 860 F.2d 928, 932–33 (9th Cir. 1988) (“[I]t is not
necessary to prove that the underlying discrimination in fact violated Title VII in order to prevail
in an action charging unlawful retaliation …. If the availability of that protection were to turn on
whether the employee's charge were ultimately found to be meritorious, resort to the remedies
provided by the Act would be severely chilled.”).
16
In contrast, the opposition clause applies only to those who object to practices that
they reasonably believe are unlawful. Wyatt v. City of Bos., 35 F.3d 13, 15 (1st Cir. 1994) (while
employee engaging in opposition activity must “have a reasonable belief that the practice the
employee is opposing violates Title VII . . . , ‘there is nothing in [the] wording [of the
participation clause] requiring that the charges be valid, nor even an implied requirement that
they be reasonable’”). In Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001), the Court held
that opposition must be reasonable; the decision did not address the participation clause.
6
The plain language of the participation clause itself
forecloses us from improvising such a reasonableness test.
The clause forbids retaliation against an employee who
“has made a charge, testified, assisted, or participated in
any manner” in a protected proceeding. 42 U.S.C. § 2000e3(a). 17
The Supreme Court has reasoned that it is necessary to protect participation
broadly in order to achieve the primary statutory purpose of “maintaining unfettered
access to statutory remedial mechanisms.” 18 Thus, the application of the participation
clause cannot depend on the substance of testimony because, “[i]f a witness in [an EEO]
proceeding were secure from retaliation only when her testimony met some slippery
reasonableness standard, she would surely be less than forth-coming.” 19 These
protections ensure that employers cannot intimidate their employees into forgoing the
complaint process and that those investigating can obtain witnesses’ unchilled testimony.
17
Glover v. S.C. Law Enf. Div., 170 F.3d 411 (4th Cir. 1999) (concluding that the
application “of the participation clause should not turn on the substance of the testimony”) (citing
Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998, 1006 n.18 (5th Cir.1969) (noting that those
who testify in Title VII proceedings are endowed with “exceptionally broad protection”)).
Similarly, in Ayala v. Summit Constructors, Inc., 788 F. Supp. 2d 703 (M.D. Tenn. 2011), the
court rejected the employer’s argument that only EEOC charges that are reasonable and made in
good faith should be protected by the participation clause. While observing that circuits are split
as to the scope of protection under this clause, the court in Ayala followed Sixth Circuit precedent
giving literal interpretation to Title VII’s statutory language to protect anyone who has
“participated in any manner” in Title VII proceedings. The court explained that such protection is
“not lost if the employee is wrong on the merits of the charge, nor is protection lost if the contents
of the charge are malicious and defamatory as well as wrong.” Id. at 719. Moreover, the court
added that even if a reasonableness or good faith requirement were to apply, the Title VII charge
at issue was not unreasonable or made in bad faith simply because it may have overstated
charging party’s concerns or misinterpreted the reasons for his treatment by the employer.
18
Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (holding that Title VII extends to
protect individuals from retaliation by current, former, or prospective employers).
19
Glover, 170 F.3d at 414 (citing Merritt v. Dillard Paper Co., 120 F.3d 1181, 1186
(11th Cir. 1997), which held that the participation clause applies even where a witness does not
testify for the purpose of assisting the claimant, or otherwise does so involuntarily). See also
Pettway, 411 F.2d at 1005 (“A protected activity acquires a precarious status if innocent
employees can be discharged while engaging in it, even though the employer acts in good faith.”)
(internal quotation marks omitted). For this reason, if an employer takes a materially adverse
action against an employee because it concludes that the employee has acted in bad faith in
raising EEO allegations, it is not certain to prevail on a retaliation claim, since a jury may
conclude that the claim was in fact made in good faith even if the employer subjectively thought
otherwise. Cf. Sanders v. Madison Square Garden, 525 F. Supp. 2d 364, 367 (S.D.N.Y. Sept. 5,
2007) (“[I]f an employer chooses to fire an employee for making false or bad accusations, he
does so at his peril, and takes the risk that a jury will later disagree with his characterization.”).
7
Encompasses Internal Complaints. The Commission also views “participation” as
encompassing internal EEO complaints to company management, human resources, or
otherwise made within an employer’s internal complaint process before a discrimination
charge is actually filed with the EEOC or a state or local Fair Employment Practices
Agency. 20 The text of Title VII prohibits retaliation against those who “participated in
any manner in an investigation, proceeding, or hearing under this subchapter.” 21 As
courts have observed, these terms are broad, unqualified, and not expressly limited to
investigations conducted by the EEOC. 22 Indeed, elsewhere in Title VII, Congress
20
See Brief of the EEOC as Amicus Curiae in Support of Appellant and in Favor of
Reversal, DeMasters v. Carilion Clinic, 796 F.3d 409 (4th Cir. 2015) (No. 13-2278),
http://www.eeoc.gov/eeoc/litigation/briefs/demasters.html ; Brief of the EEOC as Amicus Curiae
in Support of Appellant and in Favor of Reversal, Townsend v. Benjamin Enterprises, Inc., 679
F.3d
41
(2d
Cir.
2012)
(No.
09-0197-cv(L)),
http://www.eeoc.gov/eeoc/litigation/briefs/townsend1.txt; Brief of the EEOC as Amicus Curiae
in Support of Suggestion for Rehearing En Banc, Clover v. Total Sys. Servs., Inc., 176 F.3d 1346
(11th Cir. 1999) (No. 97-9229); see also Brief for the United States as Amicus Curiae Supporting
Petitioner, Crawford v. Metro. Gov’t of Nashville and Davidson County, Tenn., 555 U.S. 271
(2009) (No. 06-1595), http://www.justice.gov/osg/brief/crawford-v-metropolitan-govt-nashvilleamicus-merits.
Some courts have held that the participation clause applies to internal company
investigations only when conducted in conjunction with a formal EEOC charge, citing the
statutory reference to “proceedings…under this subchapter.” See, e.g., Townsend, 679 F.3d at 49;
Abbott v. Crown Motor Co., 348 F.3d 537, 543 (6th Cir. 2003) (“Title VII protects an employee’s
participation in an employer’s internal investigation into allegations of unlawful discrimination
where that investigation occurs pursuant to a pending EEOC charge.”); Hatmaker v. Mem’l Med.
Ctr., 619 F.3d 741, 746-47 (7th Cir. 2010) (holding that the participation clause does not cover
internal investigations before the filing of a charge with the EEOC; not addressing Supreme Court
precedents); Clover, 176 F.3d at 1353 (declining to decide whether the participation clause covers
all internal investigations, and ruling that “at least where an employer conducts its investigation
in response to a notice of charge of discrimination, and is thus aware that the evidence gathered in
that inquiry will be considered by the EEOC as part of its investigation, the employee’s
participation is participation ‘in any manner’ in the EEOC investigation”); see also EEOC v.
Total Sys. Servs., Inc., 221 F.3d 1171, 1174 n.3 (11th Cir. 2000) (distinguishing case from Clover
on the ground that no EEOC charge had been filed before the alleged retaliatory act, the court
concluded that plaintiff’s internal sexual harassment complaint could not be protected under the
participation clause).
21
42 U.S.C. 2000e-3(a) (emphasis added).
22
Merritt, 120 F.3d at 1186 (reasoning that “[t]he word ‘testified’ is not preceded or
followed by any restrictive language that limits its reach” and it is followed by the phrase “in any
manner,” indicating its intended broad sweep); United States v. Wildes, 120 F.3d 468, 470 (4th
Cir. 1997) (reasoning that the statutory term “‘any’ is a term of great breadth”).
8
demonstrated the use of language to limit provisions to EEOC investigations, but such
limiting language does not appear in the “participation” clause. 23
As a policy matter, deterring internal complaints could be to the detriment of
employers, since an effective investigation requires that employees be willing to provide
information, whether pro-employer, pro-employee, or neutral. 24 Relegating internal
complaints to the “opposition” clause could discourage employees from coming forward
at an early stage, out of concern that their statements would be deemed “unreasonable”
and therefore unprotected. Yet it is such information that may lead an employer to take
prompt corrective action, where needed to address an internal complaint of harassment,
that may later shield the employer from liability. 25
Does Not Immunize Employees From Non-Retaliatory Discipline. The breadth of
the “participation” clause, however, does not mean that employees can immunize
themselves from discipline for improper behavior by raising an internal EEO allegation,
or by filing a discrimination complaint. Employers remain free to discipline or terminate
employees for a legitimate, non-discriminatory, and non-retaliatory reason,
notwithstanding any prior protected activity. 26 Whether an adverse action is taken
23
See, e.g., 42 U.S.C. § 2000e-9 (referring to “hearings and investigations conducted by
the Commission or its duly authorized agents or agencies”); Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 62-63 (2006) (“We normally presume that, where words differ as they differ
here, ‘Congress acts intentionally and purposely in the disparate inclusion or exclusion.’”)
(quoting Russello v. United States, 464 U.S. 16, 23 (1983)).
24
Playing any role in an internal investigation should be deemed to constitute protected
activity. Otherwise, those providing information that supports the employer rather than the
complainant could be left unprotected from retaliation.
25
See, e.g., Beard v. Flying J., Inc., 266 F.3d 799 (8th Cir. 2001) (holding that
affirmative defense was not established where employer interviewed only alleged harasser and
victim, and not other employees who could have told of harassment, and where investigation
ended only with a warning for the harasser to cease alleged conduct that included actions the
court later characterized as “battery”); Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305,
1314-15 (11th Cir. 2001) (holding that an employer must have responded to an internal
harassment complaint in a “reasonably prompt manner” to establish part of the defense); Ogden v.
Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000) (holding that no affirmative defense was
established where the employer performed cursory investigation that culminated with forcing
plaintiff to resign, rather than imposing discipline on harasser).
26
Glover v. S.C. Law Enf. Div., 170 F.3d 411, 414 (4th Cir. 1999) (“[A]n EEOC
complaint creates no right on the part of an employee to miss work, fail to perform assigned
work, or leave work without notice.”) (quoting Brown v. Ralston Purina Co., 557 F.2 570, 572
(6th Cir. 1977)); Jackson v. Saint Joseph State Hosp., 840 F.2d 1387, 1390-91 (8th Cir. 1988)
(upholding dismissal of employee for past conduct and for an “abusive attempt” to have a witness
change her story). However, the Commission disagrees with those cases that extend this principle
to exclude from protected participation those individuals who have behaved in a contentious
manner during an adversarial EEO proceeding. See, e.g., Benes v. A.B. Data, Ltd., 724 F.3d 752
(7th Cir. 2013) (holding that plaintiff’s termination was not actionable as retaliation, where he
9
because of a legitimate, non-retaliatory reason or is because of the employee’s protected
activity depends on the facts. 27
EXAMPLE 1
Retaliatory Motive
Jane, a saleswoman, has been employed at a retail store for
more than a decade, and has always exceeded her sales
quota and received excellent performance appraisals.
Shortly after the company learned that Jane had provided a
witness statement to the EEOC in support of a co-worker’s
sexual harassment claim, it terminated Jane, citing her
failure to provide 48 hours advance notice to her supervisor
of a shift swap with a co-worker. Because same-day notice
of a shift swap was a widespread company practice that had
commonly been permitted, and because of the proximity in
time of her discharge to the company’s learning of her
protected activity, EEOC finds reasonable cause to believe
that the discharge was retaliatory.
EXAMPLE 2
Lawful Motive
Plaintiff, the office manager of a service company, believed
her non-selection for various managerial positions was due
to sex discrimination, and she posted on Facebook:
“anyone know a good EEOC lawyer? need one now.”
Management saw this and shared it with human resources.
Less than a week after the post, plaintiff was discharged.
She alleged it was retaliatory. However, the employer
contended the termination was due to an audit that revealed
was fired for “stalking out” of an EEOC arranged mediation after shouting at the employer’s
representative “you can take your proposal and shove it up you’re a[--] and fire me and I’ll see
you in court”).
27
See Cox v. Onondoga Cnty. Sheriff’s Dept., 760 F.3d 139 (2d Cir. 2014) (explaining
that employees “may not claim retaliation simply because the employer undertakes a factfinding
investigation” about a pending EEOC charge, because if an employer takes an adverse action
arising from something that occurred in connection with protected activity, the proper inquiry is
into whether or not the action was motivated by retaliatory intent). In a retaliation claim arising
out of disciplinary action for alleged misconduct in connection with protected activity (e.g.,
complainant allegedly lied or violated employer rules during an investigation), the employer’s
proffered non-retaliatory reason for the discipline will be viewed as a pretext for retaliatory
motive unless the employer has independent corroborating evidence to support its finding of
misconduct.
10
plaintiff’s extensive unauthorized use of overtime and her
repeated violations of company finance procedures, for
which plaintiff had been previously issued written
discipline. Even though management was aware of
plaintiff’s protected activity (her stated intention to take
action on a potential EEO claim), where the evidence
shows the firing was in fact motivated by the audit results,
plaintiff cannot prove retaliatory discharge. 28
NOTE: Employers need not refrain from taking appropriate action in
response to an employee’s conduct or performance problems even if that
employee has filed an EEO charge or engaged in other protected activity.
At the same time, it is important to recognize that some managers may be
angry or hurt about employee allegations of discrimination. Therefore, if
a manager recommends an adverse action in the wake of an employee’s
charge filing or other protected activity, employers may reduce the chance
of potential retaliation by independently evaluating whether the adverse
action is appropriate. This may include scrutinizing the legitimacy of the
adverse action, and ensuring that it is consistent with pre-existing
employer policies and equivalent to actions taken against similarlysituated employees. 29
2. Opposition
The EEO anti-retaliation provisions also make it unlawful to retaliate against an
individual because he has opposed any practice made unlawful under the employment
discrimination statutes. 30 The protection of the opposition clause applies if an individual
explicitly or implicitly communicates a belief that the employer may be engaging in
employment discrimination. “Courts have not limited the scope of the opposition clause
to complaints made to the employer; complaints about the employer to others that the
28
Deneau v. Orkin, LLC, 2013 WL 2178045 (S.D. Ala. 2013). See infra § II.C., Causal
Connection.
29
See generally EEOC FACT SHEET, RETALIATION – MAKING IT PERSONAL,
http://www.eeoc.gov/laws/types/retaliation_considerations.cfm (last visited Jan. 12, 2016).
30
Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 280
(2009); see also Valentin-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006)
(“[P]rotected conduct includes not only the filing of administrative complaints . . . but also
complaining to one’s supervisors.”); EEOC v. Romeo Community Sch., 976 F.2d 985, 989-90 (6th
Cir. 1992) (holding that retaliation claim was actionable under the FLSA, as incorporated into the
Equal Pay Act, for complaint to supervisor about male counterparts being paid $1/hour more);
EEOC v. White & Son Enterprises, 881 F.2d 1006, 1011 (11th Cir. 1989). The same conduct
may, depending on the facts, establish “participation” or, alternatively, “opposition.” See supra
notes 13, 20-24 and infra note 71.
11
employer learns about can be protected opposition.” 31 The communication may be
informal and need not include the words “harassment,” “discrimination,” or any other
legal terminology, as long as circumstances show that the individual intended to convey
opposition or resistance to a perceived EEO violation. 32
An individual is protected from retaliation for opposing any practice made
unlawful under the EEO laws. Protected “opposition” activity broadly
includes the many ways in which an individual may communicate
explicitly or implicitly opposition to perceived employment
discrimination.
Expansive Definition. The opposition clause of Title VII has an “expansive
definition” and courts have ruled that “great deference” is given to the EEOC's
interpretation of opposing conduct. 33 For example, accompanying a co-worker to the
human resources office in order to file an internal EEO complaint, 34 or complaining to
management about discrimination against co-workers, could constitute protected
31
Lindemann, Grossman & Weirich, EMPLOYMENT DISCRIMINATION LAW (Fifth ed.,
Vol. I) at 15-20 (collecting cases).
32
Okoli v. City of Baltimore, 648 F.3d 216 (4th Cir. 2011) (ruling that it was sufficient to
constitute “opposition” that plaintiff complained about “harassment” and described some facts
about the sexual behavior in the workplace that was unwelcome; she did not need to use the term
“sexual harassment” or other specific terminology); EEOC v. Go Daddy Software, Inc., 581 F.3d
951 (9th Cir. 2009) (holding that allegations need not have identified all incidents of the
discriminatory behavior complained of to constitute opposition; “a complaint about one or more
of the comments is protected behavior”). See also Ogden v. Wax Works, Inc., 214 F.3d 999 (8th
Cir. 2000) (ruling that reasonable jury could conclude plaintiff “opposed discriminatory conduct”
when she told her harasser, who was also her supervisor, to stop harassing her).
33
EEOC v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015) (quoting Johnson
v. Univ. of Cincinnati, 215 F.3d 561, 579, 580 n.8 (6th Cir. 2000)).
34
Crawford, 555 U.S. at 279 n.3 (“[E]mployees will often face retaliation not for
opposing discrimination they themselves face, but for reporting discrimination suffered by
others.”). For example, in Collazo v. Bristol-Myers Squibb Mfg., 617 F.3d 39 (1st Cir. 2010), the
court held that plaintiff engaged in protected activity by assisting a female scientist under his
supervision in filing and pursuing an internal sexual harassment complaint, rejecting the
employer’s contention that the plaintiff did not oppose discrimination because he did not “utter
words” when he and his subordinate met with a human resources official. The court explained
that an employee can oppose discrimination through conduct, and is not required to verbally
communicate his opposition. Thus, by repeatedly accompanying his subordinate to human
resources to file and pursue her sexual harassment complaint, the plaintiff “effectively and
purposefully communicated his opposition to” the alleged harasser’s treatment of the female
scientist. Id. at 47-48.
12
activity. 35 Opposition includes situations where “an employee [takes] a stand against an
employer's discriminatory practices not by ‘instigating’ action, but by standing pat, say
by refusing to follow a supervisor’s order to fire a junior worker for discriminatory
reasons.” 36 Opposition also may take the form of answering an employer’s questions
about potential discrimination where the employee did not initiate the complaint. 37
Protects All Employees, Even Managers, Human Resources Personnel, or Other
EEO Advisors. Opposition encompasses employee exposure of, and objection to,
perceived discrimination, even when those who engage in the opposition are managers,
human resources personnel or other internal EEO compliance advisors to an employer.
The EEOC and the U.S. Department of Labor have rejected the so-called “manager rule”
adopted by some courts to require that managers must “step outside” their management
role and assume a position adverse to the employer in order to engage in protected
activity. 38 The “manager rule” originated as a judicially-created concept under the Fair
35
See, e.g., EEOC v. Mountaire Farms, Inc., Civil Action No. 7:13-CV-00182 (E.D.N.C.
consent decree entered Nov. 2013) (settlement of claim of retaliation against company translator
who allegedly made repeated complaints to supervisors and the human resources department
about incidents of mistreatment of Haitian workers at the company in comparison to non-Haitian
workers); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996) (ruling that
complaining about discrimination against co-workers and refusing to fulfill employer’s request to
gather derogatory information about those who complained was protected opposition).
36
Crawford, 555 U.S. at 277.
37
Id. at 277-78 (explaining that the opposition clause in Title VII extends beyond
“active, consistent” conduct “instigat[ed]” or “initiat[ed]” by the employee, the court stated:
“There is . . . no reason to doubt that a person can ‘oppose’ by responding to someone else’s
question just as surely as by provoking the discussion, and nothing in the statute requires a
freakish rule protecting an employee who reports discrimination on her own initiative but not one
who reports the same discrimination in the same words when her boss asks a question.”).
Whether characterized as opposition or participation, the Commission’s view is that even if an
employee’s responses to an employer’s questions provided neutral or employer-favorable
information rather than supporting a co-worker’s discrimination allegations, the responses are
nevertheless “protected activity” to which anti-retaliation protections apply.
In Crawford, the Court stated it was not reaching the issue of whether internal EEO
complaints might be considered “participation” as well as opposition. As discussed supra at §
II.A.1, the Commission has always maintained that internal EEO complaints to one’s employer
are protected participation, because Title VII’s anti-retaliation provision states that it applies not
only to those who file a charge, but also to employees who “participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. 2000e-3(a).
38
See Joint Amicus Brief for the Secretary of Labor and the Equal Employment
Opportunity Commission, Rosenfield v. GlobalTranz Enterprises, Inc., __ F.3d __, 2015 WL
8599403 (9th Cir. Dec. 14, 2015) (No. 13-15292) (taking the position that a human resources
manager’s compliance advice to an employer is protected activity in a case arising under the antiretaliation
provision
applicable
in
FLSA
and
Equal
Pay
Act
cases),
http://www.eeoc.gov/eeoc/litigation/briefs/globaltranz.pdf. The Commission maintains that a
13
Labor Standards Act (FLSA) more than thirty years after the enactment of Title VII, 39
has only been adopted by a minority of courts, and has no support in the statutory text.40
Indeed, the Supreme Court’s exposition of the scope of Title VII “opposition” in
Crawford v. Metropolitan Government of Nashville & Davidson Cnty., Tenn., 555 U.S.
271 (2009), did not “restrict[] [its] holding[] to non-managers or to employees whose job
responsibilities are untethered to monitoring discrimination or enforcing nondiscrimination policies.” 41 As the Second Circuit has observed, this is “for good reason:
The plain language of § 704(a)’s opposition clause—which prohibits employers from
‘discriminat[ing] against any . . . employee[] . . .’ 42 U.S.C. § 2000e-3(a) (emphasis
added)—does not distinguish among entry-level employees, managers, and any other
type of employee.” 42 Rather, as the Supreme Court stated in Crawford, “‘[w]hen an
blanket “manager rule” should not apply to bar such individuals’ retaliation claims under any of
the EEO statutes. A number of appellate courts have agreed. See Rosenfield, __ F.3d __, 2015
WL 8599403 (concluding that the government amici’s argument that managers should not be held
to a different standard under the FLSA was persuasive and applying a “case-by-case” factual
analysis to determine whether the employer was on “fair notice” that the individual was asserting
rights protected by the statute); DeMasters v. Carilion Clinic, 796 F.3d 409, 422 (4th Cir. 2015)
(holding that “the ‘manager rule’ has no place in Title VII jurisprudence,” and stating: “Nothing
in the language of Title VII indicates that the statutory protection accorded an employee’s
oppositional conduct turns on the employee’s job description or that Congress intended to excise
a large category of workers from its anti-retaliation protections.”).
39
McKenzie v. Renberg’s, Inc., 94 F.3d 1478, 1486-87 (10th Cir. 1996) (holding that a
personnel director who had urged her employer to address overtime violations had not engaged in
protected activity under the FLSA’s anti-retaliation provision because her job responsibilities
included overseeing wage and hour compliance; reasoning that she did not “step outside [her] role
of representing the company,” such as by filing or threatening to file an action adverse to the
employer, actively assisting other employees in asserting FLSA rights, or engaging in other
activities that reasonably could be perceived as directed towards the assertion of FLSA rights).
See also Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 628 (5th Cir. 2008) (adopting the
manager rule in FLSA case); Claudio-Gotay, 375 F.3d at 102-03 (same). But see supra note 38.
40
Section 704(a) of the statute states: “It shall be an unlawful employment practice for
an employer to discriminate against any of his employees . . . because [the employee] has
opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. §
2000e-3(a) (emphasis added). “Read naturally, the word ‘any’ has an expansive meaning, that is,
‘one or some indiscriminately of whatever kind.’” United States v. Gonzales, 520 U.S. 1, 5
(1997) (quoting Webster’s Third New International Dictionary 97 (1976)) (emphasis added); see
also Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 9-10 (2011) (reasoning that
“any” “suggests a broad interpretation” of which employees may invoke the protections of the
opposition clause).
41
Littlejohn v. City of New York, 795 F.3d 297, 318 (2d Cir. 2015) (discussing the scope
of Crawford).
42
Id. See also Schanfield v. Sojitz Corp., 663 F. Supp. 2d 305, 342 (S.D.N.Y. 2009)
(holding that Crawford “seems [to] foreclose[]” the defendant’s argument that the plaintiff had
14
employee communicates to her employer a belief that the employer has engaged in … a
form of employment discrimination, that communication’ virtually always ‘constitutes
the employee’s opposition to the activity.’” 43
Section 704(a) cannot function, as intended, to protect efforts to end Title VII
violations, if those employees best situated to call attention to and oppose an employer’s
discriminatory practices are outside its protective ambit. By depriving them of
protections under the statute, courts create a disincentive for them to carry out their duties
– especially for those whose duties often include ensuring compliance with antidiscrimination laws. Moreover, the statutory purpose is promoted by protecting all such
communications about potential EEO violations by the very officials most likely to
discover, investigate, and report them. 44
Any other interpretation would also be at odds with Supreme Court precedent
adopting an affirmative defense to supervisor harassment where an employer shows it
acted promptly to prevent and remedy harassment and that the plaintiff unreasonably
failed to prevent or mitigate harm. The affirmative defense creates incentives for
employers to adopt policies and procedures that encourage the prompt reporting,
investigation, and remedying of workplace harassment, whereas the “manager rule”
discourages supervisory employees from fulfilling their duty to report harassment and
participate in internal investigations because it leaves them unprotected from retaliation.
Therefore, in determining if protected opposition occurred, the focus should not
be on the employee’s “job duties” but rather on the “oppositional nature of the
not engaged in protected activity because he had a duty to report discrimination issues; also
stating it would be “utterly inconsistent” with the sweeping language of Crawford to hold that
acts taken within an employee’s job are not “oppositional”).
43
Crawford, 555 U.S. at 276 (first emphasis added) (adopting the Commission’s position
in the EEOC COMPLIANCE MANUAL, as quoted in Brief for the United States as Amicus Curiae).
44
See DeMasters, 796 F.3d at 423 (declining to apply the “manager rule” because it
would discourage those “best able to assist employees with discrimination claims—the personnel
that make up . . . HR, and legal departments” from processing internal complaints of
discrimination, as these employees “would receive no protection from Title VII if they oppose[d]
discrimination targeted at the employees they are duty-bound to protect”); Smith v. Sec’y of Navy,
659 F.2d 1113, 1121 (D.C. Cir. 1981) (concluding that a federal agency EEO counselor had
engaged in protected activity even though such activity was also part of the plaintiff’s job duties,
and noting that “[i]t is the explicit function of EEO officers to ‘assist’ in ‘investigation(s)’ and
‘proceeding(s)’ under Title VII, and it is for work of this kind that Smith was penalized”); Rangel
v. Omni Hotel Mgmt. Corp, 2010 WL 3927744 (W.D. Tex. Oct. 4, 2010) (refusing to apply the
“step outside” rule in a Title VII case because it would “strip” Title VII protection from
“employees who are in the best positions to advise employers about compliance”).
15
employee’s complaints or criticisms, [and any other rule would be] inapposite in the
context of Title VII retaliation claims.” 45
Rejection of the “manager rule” under Title VII does not mean that every human
resources employee, or every managerial employee with a duty to report discrimination,
will have a viable claim of retaliation. A managerial employee with a duty to report or
investigate discrimination still must satisfy the same requirements as any other employee
alleging retaliation under the opposition clause described below -- meeting the definition
of “opposition,” acting with a reasonable and good faith belief that the opposed practice
is unlawful (or would be if repeated), and using a manner of opposition that is reasonable.
A managerial employee who satisfies these requirements for oppositional conduct must
also establish the other elements required for a valid retaliation claim, including a
materially adverse action and causation. Moreover, when an employer identifies a
legitimate, non-retaliatory reason for the adverse action, the employee will have to
produce enough evidence to discredit the employer’s explanation and prove the real
reason was retaliation.
Although the opposition clause in the EEO statutes is broad, it does not protect
every protest against perceived job discrimination. The following principles apply.
a.
Manner of Opposition Must Be Reasonable
The opposition clause protects reasonable actions taken by an individual to protest
perceived employment discrimination. This requirement that the manner of opposition be
reasonable balances the right to oppose employment discrimination against the
employer’s need to have a stable and productive work environment.
Complaints to Someone Other Than Employer. Although opposition typically
involves complaints to managers, 46 it may be a reasonable manner of opposition to
45
Littlejohn, 795 F.3d at 317 n.16. Nevertheless, where courts have applied a different
rule for human resources personnel or others whose job duties involve processing internal EEO
complaints, a number of courts have concluded that opposition activity did involve “stepping
outside” that role. See, e.g., Littlejohn, 795 F.3d at 318 (on retaliation claim by an employer’s
internal EEO director, holding that while fulfilling a job duty to report or investigate other
employees’ complaints of discrimination is not by itself protected opposition, when such an
employee “actively ‘support[s]’ other employees in asserting their Title VII rights or personally
‘complain[s]’ or is ‘critical’ about the ‘discriminatory employment practices’ of her employer,
that employee has engaged in a protected activity under § 704(a)’s opposition clause”) (citing
Sumner v. U.S. Postal Serv., 899 F.3d 203, 209 (2d Cir. 1990)); Collazo v. Bristol-Myers Squibb
Manufacturing, Inc., 617 F.3d 39 (1st Cir. 2010) (reasoning that “an employer cannot be
permitted to avoid liability for retaliation under Title VII simply by crafting equal employment
policies that require its employees to report unlawful employment practices,” and holding that
even assuming arguendo that a “step outside” rule applies under Title VII, plaintiff stepped
outside his managerial duties when he supported a subordinate in lodging and pursuing a sexual
harassment complaint and was therefore protected).
16
inform others of alleged discrimination, including union officials, co-workers, an
attorney, or even persons outside the company. 47 For instance, if an employee contacts
the police to ask that criminal charges be filed because of a workplace assault on a coworker with an intellectual disability, the employee has engaged in protected
“opposition,” even though it was not a complaint to managers or to a government agency
that enforces EEO laws. 48
Advising Employer of Intent to File, or Complaining Before Matter is Actionable,
It is also a reasonable manner of opposition for an employee to tell the employer of her
intention to file a charge with the Commission or a complaint with a state or local Fair
Employment Practices Agency, union, court, the employer’s human resources
department, a higher-level manager, or the company CEO. For example, if an employee
tells her manager that she intends to file an EEOC charge challenging a disparity in pay
with a male co-worker as sex discrimination, the statement would be protected
“opposition.” 49 Moreover, it is reasonable opposition for an employee to inform the
employer about alleged or potential discrimination or harassment, even if the alleged
46
See, e.g., Crawford, 555 U.S. at 276 (endorsing the EEOC’s position that
communicating to one’s employer a belief that the employer has engaged in employment
discrimination “virtually always” constitutes “opposition” to the activity, and stating that any
exceptions would be “eccentric cases”); Collazo, 617 F.3d at 47 (ruling that an employee
“opposed” a supervisor’s harassment by, inter alia, speaking to the supervisor individually and
eliciting a limited apology).
47
See Johnson v. Univ. of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000) (relying on the
EEOC Compliance Manual and case law, the court held that “there is no qualification on . . . the
party to whom the complaint is made known,” and it may include management, unions, other
employees, newspaper reporters, or “anyone else”); Pearson v. Mass. Bay Transp. Auth., 723
F.3d 36, 42 (1st Cir. 2013) (observing that “there is no dispute that writing one’s legislator is
protected conduct”); Minor v. Bostwick Labs, Inc., 669 F.3d 428 (4th Cir. 2012) (holding that
plaintiff’s meeting with a corporate executive to protest a supervisor’s direction to falsify time
records to avoid overtime was protected activity under the FLSA anti-retaliation provision, and
the fact of the meeting about plaintiff’s complaints sufficed to show she had engaged in
“opposition”); Conetta v. Nat’l Hair Care Ctrs., Inc., 236 F.3d 67, 76 (1st Cir. 2001) (ruling that
employee’s complaints of sexual harassment to co-worker who was a son of general manager was
protected opposition).
48
“Although involving the police in an employment dispute will not always be
considered part of the protected conduct that prohibits retaliatory action, where, as here, it
allegedly derived from an effort to protect against actions that are intertwined and interrelated
with alleged sexual harassment, it cannot be deemed the ‘unprofessional’ conduct for which an
employee can be terminated.” Scarbrough v. Bd. of Trs. Fla. A&M Univ., 504 F.3d 1220 (11th
Cir. 2007) (concluding a reasonable jury could find that plaintiff engaged in protected activity by
involving the campus police after he was threatened and physically accosted as a result of
rejecting his supervisor’s sexual advances).
49
See infra note 97.
17
harassment has not yet risen to the level of a “severe or pervasive” hostile work
environment. 50
Complaints Raised Publicly. Depending on the circumstances, calling public
attention to alleged discrimination may constitute reasonable opposition, provided it is
connected to an alleged violation of the EEO laws. 51 Opposition may include even
activities such as letter writing, picketing, or engaging in a production slow-down. 52 It
includes making informal protests of discrimination, “‘including . . . writing critical
letters to customers, protesting against discrimination by industry or society in general,
and expressing support of co-workers who have filed formal charges,’” 53 provided it is
not done in so disruptive or excessive a manner as to be unreasonable. 54
Moreover, going outside a chain of command or prescribed internal complaint
procedure in order to bring forth discrimination allegations may be reasonable. 55
Examples of Unreasonable Manner of Opposition. On the other hand, it is not
reasonable opposition if an employee, for example, makes an overwhelming number of
50
See infra notes 60-70 and accompanying text for extended discussions of this issue.
51
EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1014 (9th Cir. 1993) (observing
that all actions of opposition to an employer’s practices constitute some level of disloyalty, and
therefore in order to reach the level of being unreasonable, such opposition must “significantly
disrupt[ ] the workplace” or “directly hinder[ ]” the plaintiff's ability to perform his or her job);
EEOC v. Kidney Replacement Servs., P.C., 2007 WL 1218770 (E.D. Mich. 2007) (concluding
that medical workers engaged in reasonable opposition when they raised their sexual harassment
complaints directly to the onsite supervisor at the correctional facility to which their employer
had assigned them, even though they were in effect raising a complaint to their employer’s
customer).
52
See, e.g., Crown Zellerbach, 720 F.2d at 1013-14 (9th Cir. 1983) (holding that
employer violated Title VII when it imposed disciplinary suspension in retaliation for public
protest letter by several employees of an “affirmative action award” given to a major customer;
even though the letter could potentially harm the employer’s economic interests, it was a
reasonable manner of opposition since it did not interfere with job performance); Payne v.
McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1136 (5th Cir. 1981) (holding that
picketing in opposition to employer’s alleged unlawful practice was protected activity under §
704(a) even though employer’s business suffered); EEOC Dec. 71-1804, 3 FEP 955 (1971)
(holding that right to strike over unlawful discrimination cannot be bargained away in union
contract).
53
Sumner v. United States Postal Service, 899 F.2d 203, 209 (2d Cir. 1990)
54
See, e.g., Matima v. Celli, 228 F.3d 68, 78–79 (2d Cir. 2000) (collecting cases).
55
See supra notes 46-51.
18
patently specious complaints, 56 or badgers a subordinate employee to give a witness
statement in support of an EEOC charge and attempts to coerce her to change that
statement. 57 The activity will not be considered reasonable if it involves an unlawful act,
such as committing or threatening violence to life or property.
Opposition to perceived discrimination does not serve as license for the employee
to neglect job duties. If an employee’s protests render the employee ineffective in the
job, the retaliation provisions do not immunize the employee from appropriate discipline
or discharge. 58
b. Opposition Need Only Be Based on Reasonable Good Faith Belief,
Even if Matter Complained of Not Ultimately Deemed Unlawful
A retaliation claim, whether based on participation or opposition, is not defeated
merely because the underlying challenged practice ultimately is found to be lawful. 59 An
individual need only have had a reasonable belief that the matter complained of violates
the EEO laws in order for his statements or actions to constitute protected “opposition.”60
56
Rollins v. Fla. Dep’t of Law Enforcement, 868 F.2d 397 (11th Cir. 1989) (describing
“the sheer number and frequency” of plaintiff’s “mostly spurious” discrimination complaints
“was overwhelming,” and holding that the manner of opposition was not reasonable).
57
Jackson v. Saint Joseph State Hosp., 840 F.2d 1387 (8th Cir. 1988).
58
See, e.g., Coutu v. Martin Cnty. Bd. of Comm’rs, 47 F.3d 1068, 1074 (11th Cir. 1995)
(ruling that retaliation was not proven where plaintiff was criticized by her supervisor not because
she was opposing discrimination, but because she was spending an inordinate amount of time in
“employee advocacy” activities and was not completing other aspects of her personnel job).
59
Trent v. Valley Elec. Ass’n, Inc., 41 F.3d 524, 526 (9th Cir. 1994) (“[A] plaintiff [in an
opposition case] does not need to prove that the employment practice at issue was in fact
unlawful under Title VII . . . [plaintiff] must only show that she had a “reasonable belief” that the
employment practice she protested was prohibited under Title VII.”).
60
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (per curiam) (holding that
plaintiff’s harassment complaint arising out of statement made by coworker while they were
serving together on a hiring panel was not reasonable in the circumstances); Wasek v. Arrow
Energy Servs., Inc., 682 F.3d 463, 470 (6th Cir. 2012) (holding that complaints of sexual
harassment were protected opposition even though there was insufficient evidence to prove the
alleged harassment was based on sex; “[a] plaintiff does not need to have an egg-shell skull in
order to demonstrate a good faith belief that he was victimized”). While opposition is often
reasonable, the unusual facts in Breeden led the Court to hold in that case that no reasonable
person could have believed that a male, serving with plaintiff on a panel screening job applicants,
had engaged in potential unlawful harassment when he, on one occasion, read aloud a job
applicant’s description of sexual conduct, stated that he did not know what it meant, and then
laughed when another male employee said, “I’ll tell you later.” The Court in Breeden noted:
“The ordinary terms and conditions of the [plaintiff’s] job required her to review the sexually
explicit statement in the course of screening job applicants. Her co-workers who participated in
the hiring process were subject to the same requirement,” and the plaintiff “conceded that it did
19
As the Seventh Circuit explained, limiting retaliation protections to those individuals
whose discrimination claims are meritorious would “undermine[] Title VII’s central
purpose, the elimination of employment discrimination by informal means; destroy[] one
of the chief means of achieving that purpose, the frank and non-disruptive exchange of
ideas between employers and employees; and serve[] no redeeming statutory or policy
purposes of its own.” 61
Thus, for example, an employee’s internal harassment complaint constitutes
reasonable opposition even if the harassment falls far short of “severe or pervasive”
harassment, 62 since the entire hostile work environment liability standard is predicated on
not bother or upset her” to read the statement in the application. Accordingly, the Court held that
the plaintiff’s complaints about the incident did not constitute protected opposition, and she could
not maintain a retaliation claim under Title VII. See Collazo v. Bristol-Myers Squibb Mfg., 617
F.3d 39, 48 (1st Cir. 2010) (“[T]he challenged conduct [in Breeden] amounted to a single, mild
incident or offhand comment, such that no reasonable person could have believed that this
conduct violated Title VII.”). Similarly, in Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181
(3d Cir. 2015), plaintiff failed to show she engaged in protected opposition when she complained
to the principal that his comment during a staff meeting that many of the teachers looked old
enough to be grandparents was offensive and ageist. The court in Daniels ruled that since the
remark was simply an offhand non-derogatory comment directed at no one in particular, plaintiff
could not have had an “objectively reasonable belief” that the comment would violate the ADEA.
However, the court held plaintiff did engage in protected activity by later sending a letter to
human resources that complained about age discrimination, citing the “grandparent” comment,
increased scrutiny, being referred to as “old school” by colleagues, lack of assistance in
disciplining her students, negative evaluations, the principal questioning students about the
plaintiff’s pedagogy, and his failure to inform her about her teaching status until after the new
school year started despite multiple requests for information. See also Wright v. Monroe
Community Hospital, 493 Fed.Appx. 233 (2d Cir. 2012) (unpublished) (ruling that nurse’s claim
of racial harassment by patient with dementia was not protected activity); Brannum v. Missouri
Dep’t of Corr., 518 F.3d 542, 548 (8th Cir. 2008) (concluding that plaintiff who corroborated
“single, relatively tame” sexist remark could not have reasonably believed her conduct
constituted protected activity); Byers v. Dallas Morning News, 209 F.3d 419, 428 (5th Cir. 2000)
(employee’s complaint of reverse discrimination was objectively unreasonable absent any
supporting evidence).
61
Berg v. La Crosse Cooler Co., 612 F.2d 1041, 1045 (7th Cir. 1980).
62
Boyer-Liberto v. Fontainbleau Corp., 786 F.3d 264 (4th Cir. 2015); Magyar v. Saint
Joseph Reg’l Med. Ctr., 544 F.3d 766, 771 (7th Cir. 2008) (explaining that a plaintiff need only
have a “sincere and reasonable belief” that she was opposing an unlawful practice, so the conduct
complained of need not have been persistent or severe enough to be unlawful, but need only
“fall[] into the category of conduct prohibited by the statute”); Baldwin v. Blue Cross/Blue Shield
of Ala., 480 F.3d 1287 (11th Cir. 2007) (reasoning that the Faragher-Ellerth “design works only
if employees report harassment promptly, earlier instead of later, and the sooner the better”). But
see Grosdidier v. Broad. Bd. of Governors, 709 F.3d 19, 24 (D.C. Cir. 2013) ([I]f “a plaintiff
contends that the practices she opposes constitute a hostile work environment, the court must
assess whether she could have reasonably believed that the workplace was permeated with
20
encouraging employees to report harassment and employers to act on early complaints,
before the harassment becomes “severe or pervasive.” Such complaints play a critical
role in EEO compliance and enforcement:
In most circumstances, if employers and employees
discharge their respective duties of reasonable care,
unlawful harassment will be prevented and there will be no
reason to consider questions of liability. An effective
complaint procedure ‘encourages employees to report
harassing conduct before it becomes severe or pervasive,’
and if an employee promptly utilizes that procedure, the
employer can usually stop the harassment before actionable
harm occurs. 63
A contrary reading of the opposition clause renders an employee unprotected
from retaliation for complaints of harassment, even though the employee’s personal
safety as well as the employer’s interest in limiting liability both mitigate in favor of
complaining as soon as possible. If internal complaints of harassment that have not yet
become severe or pervasive were not protected from retaliation, it would, as the Fourth
Circuit explained, “be at odds with the hope and expectation that employees will report
harassment early,” since “the victim is compelled by the Ellerth/Faragher defense to
make an internal complaint, i.e., ‘to take advantage of any preventive or corrective
opportunities provided by the employer.’” 64 “Complaining about alleged sexual
harassment to company management is classic opposition activity.” 65 Moreover, it
would undermine long-standing Supreme Court precedent expressly linking liability for
both supervisor and co-worker harassment to the actions employers take after being put
on notice of potential harassment, which expressly encourages complaints to be made
before the harassment becomes “severe or pervasive.” 66 For these reasons, the
discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter
the conditions of her employment and create an abusive working environment.”).
63
EEOC ENFORCEMENT GUIDANCE: VICARIOUS EMPLOYER LIABILITY FOR UNLAWFUL
HARASSMENT BY SUPERVISORS, http://www.eeoc.gov/policy/docs/harassment.html.
64
Boyer-Liberto v. Fontainbleau Corp., 752 F.3d 350 (4th Cir. 2015) (quoting Faragher,
524 U.S. at 807).
65
Wasek v. Arrow Energy Servs., Inc. 682 F.3d 463, 470-71 (6th Cir. 2012). See also
supra notes 59-64 and infra notes 66-72, 81.
66
Contrary rulings such as Grosdidier cannot be harmonized with the Supreme Court’s
jurisprudence under Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Indus.,
Inc. v. Ellerth, 524 U.S.742 (1998), which strongly encourage employees to complain promptly
about harassment so that employers can take prompt corrective action before it becomes severe or
pervasive and thus violates the law. Moreover, contrary court rulings often are factually
distinguishable from the typical harassment complaint because, as in Breeden, they involve
opposition to a trivial matter that a court finds no reasonable person could believe could lead to a
21
Commission disagrees with cases that have found no protection from retaliation for
employees complaining of harassment that is not yet “severe or pervasive.” 67
The Fourth Circuit concurs that many aspects of Title VII’s harassment liability
standards compel protecting these early complaints of harassment as reasonable
opposition:
Similarly, the victim of a co-worker's harassment is prudent
to alert her employer in order to ensure that, if the
harassment continues, she can establish the negligence
necessary to impute liability. See Vance, 133 S. Ct. at
2453.
The reporting obligation is essential to
accomplishing Title VII's ‘primary objective,’ which is
“not to provide redress but to avoid harm.” See Faragher,
524 U.S. at 806. Thus, we have recognized that the victim
is commanded to ‘report the misconduct, not investigate,
gather evidence, and then approach company officials.’
See Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261,
269 (4th Cir. 2001). Further, we have emphasized that an
employee's ‘generalized fear of retaliation does not excuse
a failure to report . . . ‘harassment,’ particularly where
‘Title VII expressly prohibits any retaliation against [the
reporting employee].’ See Barrett, 240 F.3d at 267. 68
To encourage the “early reporting vital to achieving Title VII’s goal of avoiding
harm,” even reporting an isolated single incident of harassment is protected opposition if
the employee “reasonably believes that a hostile work environment is in progress, with no
requirement for additional evidence that a plan is in motion to create such an environment
violation of the EEO laws. See, e.g., Grosdidier, 709 F.3d at 24 (complaint about circulation of
an e-mail with a suggestive image of a well-known musician and excessive hugging and kissing
between a female coworker and several male coworkers and visitors was not protected
opposition); Huang v. Continental Cas. Co., 754 F.3d 447 (7th Cir. 2014) (complaint that
supervisor engages in favoritism and made comment that the plaintiff was “pissing him off” was
not protected opposition). See also supra note 60.
67
For example, in the Commission’s view, an employee who reports sexual harassment
through the employer’s accepted channels has engaged in protected opposition under Title VII,
even if the harassment complained of was not yet actionable. Brief of EEOC as Amicus Curiae
Supporting Appellant, DeMasters v. Carilion Clinic, 796 F.3d 409 (4th Cir. 2015) (No. 13-2278),
http://www.eeoc.gov/eeoc/litigation/briefs/demasters.html. See also Wasek, 682 F.3d at 470-71
(holding that complaints of sexual harassment were protected opposition even though there was
insufficient evidence to prove the alleged harassment was based on sex).
68
Boyer-Liberto, 752 F.3d at 282-83.
22
or that such an environment is likely to occur.” 69 Furthermore, an employee might
reasonably complain about even a single incident. 70
The Commission also takes the position that individuals who raise EEO
allegations internally or contribute to such investigations voluntarily or when required
are, under the plain terms of the statute, “participating” in investigations. Some courts,
however, have analyzed such actions as protected under the “opposition” clause.
Whether viewed as participation or opposition, the statutory anti-retaliation protection in
the Commission’s view extends not only to those who complain about potential EEO
violations, but also, for example, to those who provide neutral or employer-favorable
information about an alleged violation. 71 Encouraging employers to discover and prevent
discriminatory practices in the workplace is a primary objective of the EEO laws, so an
employee who acts reasonably to assist the employer in any way with this endeavor is, by
definition, supporting enforcement of the law and thereby opposing practices made
unlawful by an EEO statute. 72
A complaint about an employment practice constitutes protected opposition only
if the individual explicitly or implicitly communicates the belief that the practice could
constitute unlawful employment discrimination. 73 However, because individuals often
may not know the specific requirements of the anti-discrimination laws enforced by the
EEOC, they may make broad or ambiguous complaints of unfair treatment. Such
69
Id. at 282.
70
Id. at 268 (“[A]n employee is protected from retaliation when she reports an isolated
incident of harassment that is physically threatening or humiliating, even if a hostile work
environment is not engendered by that incident alone.”).
71
See supra notes 13, 20-24, and accompanying text. The two clauses of the antiretaliation provision do not operate in isolation. An employee who testifies in support of a
charging party in an EEOC investigation, for example, would be opposing conduct proscribed by
Title VII and also participating in an investigation “under this subchapter.” The two subsections
of section 704(a) are best read not as mutually exclusive sub-types of retaliation, but as
complementary provisions designed to prohibit all retaliation that could reasonably deter the
exercise of rights protected under Title VII.
72
For this reason, the Commission disagrees with those cases requiring an “objectively”
reasonable belief that one is opposing discrimination. See, e.g., Clover v. Total Sys. Servs., Inc.,
176 F.3d 1346, 1351-52 (11th Cir. 1999). However, even assuming an “objectively” reasonable
belief is required, an employee’s participation in his employer’s own investigation should always
satisfy this standard.
73
See, e.g., Barber v. CSX Distrib. Servs., 68 F.3d 694 (3d Cir. 1995) (ruling that
plaintiff’s letter to defendant’s human resources department complaining about unfair treatment
and expressing dissatisfaction that job he sought went to a less qualified individual did not
constitute ADEA opposition, because letter did not explicitly or implicitly allege that age was
reason for alleged unfairness).
23
communication is protected opposition if the complaint would reasonably have been
interpreted as opposition to employment discrimination. Similarly, it is reasonable for an
employee to believe conduct violates the EEO laws if the Commission, as the primary
agency charged with enforcement, has adopted that interpretation.
EXAMPLE 3
Protected Opposition – Complaints to
Management Based on Legal Position Taken by EEOC
An employee believes he is being harassed by co-workers
based on his sexual orientation, and complains to his
manager and human resources. This is protected activity
under Title VII, because in light of EEOC’s stated legal
position and enforcement efforts, individuals could have a
reasonable belief that sexual orientation discrimination is
actionable as sex discrimination under Title VII. 74
EXAMPLE 4
Protected Opposition –
Reasonable and Good Faith Belief
CP complains to her office manager that her supervisor
failed to promote her because of her gender after an
apparently less qualified man was selected. She then files
an EEOC charge alleging subsequent retaliatory actions.
EEOC finds reasonable cause to believe that CP has
engaged in protected opposition regardless of whether the
promotion decision was in fact discriminatory because she
had a reasonable and good faith belief that discrimination
occurred.
74
Baldwin v. Dep’t of Transportation, EEOC Appeal No. 120133080 (July 15, 2015),
http://www.eeoc.gov/decisions/0120133080.pdf; see also Brief of EEOC as Amicus Curiae in
Support of Panel Rehearing in Muhammad v. Caterpillar, Inc., 767 F.3d 694 (7th Cir. 2014) (121723) (“To hold otherwise would require discrimination victims or witnesses – usually ‘lay’
persons – to master the subtleties of sex-discrimination law before securing safe harbor in the
broad
remedial
protections
of
Title
VII’s
anti-retaliation
rule.”),
http://www.eeoc.gov/eeoc/litigation/briefs/caterpillar2.html. See, e.g., Berg v. La CrosseCooler
Co., 612 F.2d 1041 (7th Cir. 1980) (holding that employee, who advised co-worker that
employer’s pregnancy disability policy was illegal, engaged in protected opposition even though
it was not yet settled law that such policies constitute sex discrimination in violation of Title VII);
Birkholz v. City of New York et al., 2012 WL 580522, at *7-8 (E.D.N.Y. Feb. 22, 2012) (“If
opposition to sexual-orientation-based discrimination was not protected activity, employees
subjected to gender stereotyping would have to base their decision to oppose or not oppose
unlawful conduct on a brittle legal distinction [between sexual orientation and sex
discrimination], a situation that might produce a chilling effect on gender stereotyping claims.”)
24
The opposition clause, however, does not protect complaints about trivial matters
that no reasonable person could believe could become harassment or other
discrimination. 75
EXAMPLE 5
Not Protected Opposition –
Complaint Not Motivated By
Reasonable and Good Faith Belief
Same as above, except the job sought by CP was in
accounting and required a CPA license, which CP lacked
and the selectee had. CP knew that it was necessary to have
a CPA license to perform this job. CP has not engaged in
protected opposition because she did not have a reasonable
and good faith belief that she was rejected because of sex
discrimination.
c. Examples of Opposition
Protected opposition includes actions such as: complaining about
alleged discrimination against oneself or others, or threatening to
complain; providing information in an employer’s internal
investigation of an EEO matter; refusing to obey an order reasonably
believed to be discriminatory; advising an employer on EEO
compliance; resisting sexual advances or intervening to protect
others; passive resistance (allowing others to express opposition); and
requesting reasonable accommodation for disability or religion.
●
Complaining about alleged discrimination against oneself or others, or
threatening to complain 76
EXAMPLE 6
CP complains to her supervisor about graffiti in her
workplace that is derogatory toward women. Although CP
75
See discussion of Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001), and similar
cases, supra notes 60 & 66.
76
The Commission also views internal complaints of discrimination to management as
participation, but if alternatively characterized as opposition, the analysis here would apply. This
issue is also discussed supra at notes 13, 20-24, 58-71 and the accompanying text.
25
does not specify that she believes the graffiti creates a
hostile work environment based on sex, her complaint
reasonably would have been interpreted by the supervisor
as opposition to sex discrimination, due to the sex-based
content of the graffiti. The graffiti does not need to rise to
the level of severe or pervasive hostile work environment
harassment in order for her complaint to be reasonable
opposition.
●
Providing information in an employer’s internal investigation of an EEO
matter
EXAMPLE 7
An employee who has not lodged any complaint of her own
is identified as a witness in an employer’s internal
investigation of a co-worker’s sexual harassment
allegations. The employee is interviewed by the employer
and provides corroborating information about sexual
harassment she witnessed and/or experienced. This is
protected opposition, even though she has not lodged an
internal complaint of her own. 77
77
Reversing summary judgment in favor of the employer, the Supreme Court in
Crawford v. Metro. Gov’t of Nashville and Davidson Cnty., Tenn., 555 U.S. 271, 279-80 (2009),
held that the plaintiff’s participation in an employer’s internal investigation of another worker’s
harassment complaint constituted opposition to unlawful discrimination protected by Title VII.
During the employer’s investigation of sexual harassment complaints made by coworkers, the
plaintiff reported that she also had been sexually harassed. The Court held that the opposition
clause in Title VII extends beyond “active, consistent” conduct “instigat[ed]” or “initiat[ed]” by
the employee. “There is. . . no reason to doubt that a person can ‘oppose’ by responding to
someone else’s question just as surely as by provoking the discussion, and nothing in the statute
requires a freakish rule protecting an employee who reports discrimination on her own initiative
but not one who reports the same discrimination in the same words when her boss asks a
question.” Id. at 277-78. The Court also concluded that requiring “active” opposition would
undermine the Faragher-Ellerth framework. “If it were clear law that an employee who reported
discrimination in answering an employer’s questions could be penalized with no remedy, prudent
employees would have a good reason to keep quiet about Title VII offenses against themselves or
against others.” Id. at 279; see also Jute v. Hamilton Sundstrand Corp, 420 F.3d 166 (2d Cir.
2005) (holding that Title VII’s anti-retaliation provision protects a person who volunteers to
testify on behalf of a coworker, even if the person is never actually called to testify; the evidence
indicated that the coworker identified the plaintiff as a witness to alleged unlawful harassment,
and although the parties settled the coworker’s complaint and the plaintiff was never called to
testify, the employer was put on notice that had she been called, she would have testified for the
coworker); EEOC v. Creative Networks, L.L.C., 108 Fair Emp. Prac. Cas. (BNA) 542, 2010 WL
276742 (D. Ariz. Jan. 15, 2010) (ruling that Title VII’s retaliation provision protected plaintiff
who was named by coworker as witness in discrimination claim; Title VII protects a worker
26
●
Refusing to obey an order reasonably believed to be discriminatory
Refusal to obey an order constitutes protected opposition if the individual
reasonably believes that the order requires him or her to carry out unlawful employment
discrimination. 78
EXAMPLE 8
Plaintiff, who works for an employment agency referring
individuals to fill temporary and permanent positions with
corporate clients, is instructed by his manager not to refer
any African-Americans to a particular client per the client’s
request.
Plaintiff tells the manager this would be
discriminatory, and proceeds instead to refer employees to
this client on an equal opportunity basis. The EEOC finds
reasonable cause to believe that Plaintiff’s refusal to obey
the order constitutes “opposition” to an unlawful
employment practice. The plaintiff could show that his
enforcement of the policy would have made engaging in
race discrimination a term or condition of his employment
with the employment agency. 79
whether “poised to support co-worker’s discrimination claim, dispute the claim, or merely present
percipient observations”).
78
Protected opposition to discriminatory conduct can also include refusal to implement a
discriminatory policy. Crawford, 555 U.S. at 277 (“[W]e would call it ‘opposition’ if an
employee took a stand against an employer's discriminatory practices not by ‘instigating’ action,
but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for
discriminatory reasons.”). See, e.g., EEOC v. HBE Corp., 135 F.3d 543 (8th Cir. 1998) (ruling
that personnel director’s refusal to fire employee because of his race constituted protected activity
because he was opposing the employer’s discriminatory policy of excluding African-American
employees from important positions).
79
Foster v. Time Warner Ent. Co., 250 F.3d 1189 (8th Cir. 2001) (holding that customer
service manager engaged in statutorily protected opposition activity where she repeatedly
questioned her new supervisor about how a revised sick leave policy affected ADA
accommodations previously granted to an employee with epilepsy whom she supervised, and then
refused to implement the new policy by continuing to allow the employee to work flexible hours);
Johnson v. Univ. of Cincinnati, 215 F.3d 561 (6th Cir. 2000) (concluding that action taken by a
university vice president, in his capacity as an affirmative action official, to respond to hiring
decisions that he believed discriminated against women and minorities, constituted protected
opposition under Title VII).
27
•
Advising an employer on EEO compliance
EXAMPLE 9
Plaintiff, XYZ Corp.’s human resources manager, came to
believe that the company was improperly denying certain
requested reasonable accommodations to which individuals
with disabilities were entitled to under the Americans with
Disabilities Act, as amended. Shortly after she reported
these ADA violations to supervisory management, her
employment was terminated. Even though her oral reports
to supervisors fell within the ambit of her managerial
duties, her reports of unlawful company actions were
protected opposition. Protected activity includes EEO
complaints by managers, human resources staff, and EEO
advisors -- even when those complaints happen to be made
as part of the individual’s job duties -- provided the
complaint meets all the other relevant requirements for
protected activity. 80
●
Resisting sexual advances or intervening to protect others
EXAMPLE 10
Protected Opposition – Resisting
Supervisor’s Sexual Advances
In response to a supervisor’s repeated sexual comments to
her, an employee tells the supervisor “leave me alone” and
“stop it.” A co-worker intervenes on her behalf, also
asking the manager to stop. The employee’s resistance and
the co-worker’s intervention both constitute protected
opposition. Any retaliation by the supervisor would be
actionable. 81
80
Foster, 250 F.3d 1189. See also supra notes 38-45.
81
In EEOC v. New Breed Logistics, 783 F.3d 1057 (6th Cir. 2015), the court held that an
employee’s demand that a supervisor cease harassing conduct constitutes protected activity under
Title VII. The court explained that “[i]f an employee demands that his/her supervisor stop
engaging in this unlawful practice—i.e., resists or confronts the supervisor's unlawful
harassment—the opposition clause's broad language confers protection to this conduct.” Relying
in part on the statutory text, the court observed that “[i]mportantly, the language of Title VII does
not specify to whom protected activity must be directed.” See also Warren v. Ohio Dept. of
Public Safety, 24 Fed.Appx. 259, 265 (6th Cir.2001) (“Under the opposition clause, ... [t]here is
no qualification on who the individual doing the complaining may be or on who the party to
whom the complaint is made.”); Ogden v. Wax Works, Inc., 214 F.3d 999 (8th Cir. 2000) (holding
that a reasonable jury could conclude plaintiff opposed discriminatory conduct when she told her
28
●
Passive resistance
Passive opposition is the act of allowing others to express opposition. Such an
action may itself be protected under the opposition clause.
EXAMPLE 11
Protected Opposition – Refusal to Implement
Instruction to Interfere with Exercise of EEO Rights
A supervisor does not carry out his management’s
instruction to discourage subordinates from filing
discrimination complaints. 82
Any adverse action by
management against the supervisor in reprisal for his
refusal to prevent complaints would be actionable
retaliation.
●
Requesting reasonable accommodation for disability or religion
A request for reasonable accommodation of a disability constitutes protected
activity under the ADA, and therefore retaliation for such requests is unlawful. 83 By the
same rationale, persons requesting religious accommodation under Title VII are protected
against retaliation for making such requests. 84 Although a person making such a request
harasser, who was also her supervisor, to stop harassing her); EEOC v. IPS Indus., Inc., 899 F.
Supp. 2d 507 (N.D. Miss. 2012) (ruling that an employee’s complaint to a supervisor about
sexual harassment, including confronting the supervisor about his insinuations that the employee
was involved in a relationship with a coworker, telling the supervisor not to touch her again after
he reached around behind her, and informing him that she would only return to work if he
stopped touching her, were not “mere rejections” of inappropriate sexual conduct, but rather
constituted protected conduct under Title VII’s opposition clause); Ross v. Baldwin Cnty. Bd. of
Ed., No. 06–0275, 2008 WL 820573, at *6 (S.D. Ala. Mar. 24, 2008) (“It would be anomalous,
and would undermine the fundamental purpose of the statute, if Title's VII's protections from
retaliation were triggered only if the employee complained to some particular official designated
by the employer.”). These protections could also extend to even non-verbal resistance to an
unwanted sexual advance by a supervisor. But see Lemaire v. La. Dep’t of Transp. & Dev.,
480 F.3d 383 (5th Cir. 2007) (concluding that rejecting sexual advances is not protected activity
for purposes of a Title VII retaliation claim).
82
McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir. 1996) (ruling that employee stated
cause of action for retaliation when he alleged that his employer retaliated against him for failing
to prevent subordinate from filing a sexual harassment complaint).
83
Kelley v. Correctional Med. Servs., Inc., 707 F.3d 108 (1st Cir. 2013) (concluding that
evidence of supervisor’s ongoing hostility about an accommodation the employee received could
support an inference of retaliatory intent); Cloe v. City of Indianapolis, 712 F.3d 1171 (7th Cir.
2013); Ellison v. Napolitano, 901 F. Supp. 2d 118 (D.D.C. 2012).
29
might not literally “oppose” discrimination or “participate” in a complaint process, s/he is
protected against retaliation for making the request. As one court stated: “[i]t would
seem anomalous . . . to think Congress intended no retaliation protection for employees
who request a reasonable accommodation unless they also file a formal charge. This
would leave employees unprotected if an employer granted the accommodation and
shortly thereafter terminated the employee in retaliation.” 85
EXAMPLE 12
Protected Opposition – Request for Exception to
Uniform Policy as a Religious Accommodation
After a retail employee’s supervisor denies her request to
wear her religious headscarf as an exception to the new
uniform policy, the corporate human resources department
instructs the supervisor to grant the request because there is
no undue hardship. Motivated by revenge, the supervisor
thereafter gives the employee an unjustified poor
performance rating and denies her request to attend training
that he approves for her co-workers. The EEOC finds
reasonable cause to believe that the supervisor retaliated
against the employee in violation of Title VII. 86
84
Schellenberger v. Summit Bancorp., Inc., 318 F.3d 183, 190 (3d Cir. 2003).
85
Soileau v. Guilford of Me., 105 F.3d 12, 16 (1st Cir. 1997); see also Garza v. Abbott
Labs., 940 F. Supp. 1227, 1294 (N.D. Ill. 1996) (ruling that plaintiff engaged in statutorily
protected expression by requesting accommodation for her disability). The courts in Soileau and
Garza only considered whether accommodation requests fall within the opposition or
participation clause in Section 503(a) of the ADA. Note, however, that Section 503(b) more
broadly makes it unlawful to interfere with “the exercise or enjoyment of . . . any right granted or
protected” by the statute.
86
See, e.g., Wilkerson v. New Media Tech. Charter Sch., 522 F.3d 315, 319-20 (3d Cir.
2008) (ruling that employee’s refusal to participate in school ceremony because of her religious
beliefs was protected opposition activity, and school’s subsequent decision not to rehire her due
to her nonparticipation was actionable as retaliation).
30
d. Inquiries and Other Discussions Related to Compensation 87
Protections against retaliation for inquiring about or otherwise
discussing compensation information include: protections enforced
by the EEOC that prohibit retaliation for protected activity;
protections enforced by the U.S. Department of Labor that prohibit
adverse action against employees who discuss their compensation;
and protections enforced by the National Labor Relations Board for
discussion of wages as concerted activity.
According to the U.S. Department of Labor, approximately 60% of private sector
workers surveyed nationally reported that they were either contractually forbidden or
strongly discouraged by management from discussing their pay with their colleagues. 88
While most private employers are under no obligation to make wage information public,
actions taken by an employer to prohibit employees from discussing their compensation
with one another may deter protected activity, whether pursuant to a so-called “pay
secrecy” policy or simply an employer action. Reprisal for discussing compensation may
implicate a number of different federal laws, including the following:
(1) Compensation Discussions as Opposition Under the EEO Laws
Materially adverse actions against employees for protected opposition activity
relating to discussion of their pay may constitute retaliation in violation of the EEO laws.
For example, when an employee communicates to management or co-workers to
complain or ask about compensation, or otherwise discusses rates of pay, the
communication may constitute protected opposition under the EEO laws, making
employer retaliation actionable based upon the facts of a given case. The anti-retaliation
provisions under the EEO laws “deter the many forms that effective retaliation can take”
and “prohibit a wide variety of employer conduct that is intended to restrain, or that has
the likely effect of restraining, employees in their exercise of protected activities.” 89
87
This section provides examples of existing federal authorities. Furthermore, various
states have additional protections. A potential future protection that has been introduced but not
enacted is the proposed federal legislation known as the Paycheck Fairness Act, S. 862 and H.R.
1619, 114th Cong. (2015), https://www.congress.gov/bill/114th-congress/senate-bill/862/all-info
(last visited Jan. 12, 2016), that would, if passed by Congress and enacted, provide an explicit
statutory protection to employees from retaliation related to wage disclosure.
88
WOMEN’S BUREAU, U.S. DEPARTMENT OF LABOR, PAY SECRECY FACT SHEET (Aug.
2014) (noting results from 2010 Institute for Women’s Policy Research/Rockefeller Survey of
Economic Security), http://www.dol.gov/wb/media/pay_secrecy.pdf (last visited Jan. 12, 2016).
89
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63, 66-67 (2006). Talking to
co-workers to gather information or evidence in support of a potential EEO claim is protected
31
EXAMPLE 13
Wage Complaint Reasonably
Interpreted as EEO-Related
A temporary janitor learns that she is being paid a dollar
less per hour than previously-hired male counterparts. She
approaches her supervisor and says she believes they are
“breaking some sort of law” by paying her lower wages
than previously paid to male temporary custodians. This is
protected opposition. 90
EXAMPLE 14
Discussion of Suspected Pay Discrimination Despite
Employer’s Policy Prohibiting Discussions of Pay
CP was disciplined by R because she discussed with coworkers her belief that she was being discriminated against
based on sex because her pay was lower than that of male
employees doing similar work. R considered the CP’s
discussions of pay to violate R’s “Code of Conduct,” which
prohibits discussions of pay, and therefore disciplined CP
for engaging in discussions about suspected pay
discrimination. R’s discipline of CP constitutes unlawful
retaliation for protected opposition.
EXAMPLE 15
Not Protected Opposition –
Wage Complaint Would Not Reasonably Have Been
Interpreted as EEO-Related
CP, who is African American, requests a wage increase
from R, arguing that he deserves to get paid a higher salary.
He does not state or suggest a belief that he is being
subjected to wage discrimination based on race or any other
opposition, provided the manner of opposition is reasonable. See Jackson v. St. Joseph State
Hosp., 840 F.2d 1387, 1390-91 (8th Cir. 1988) (majority and dissent agreeing that gathering
information or evidence from co-workers is protected activity, though reaching different
conclusions about whether employee’s manner of opposition was reasonable on facts of the case).
90
EEOC v. Romeo Community Sch., 976 F.2d 985, 989-90 (6th Cir. 1992) (holding that
retaliation claim was actionable under FLSA, as incorporated into the Equal Pay Act, based on
reprisal against female temporary custodian for her complaint to supervisor that male counterparts
earned $1/hour more).
32
protected characteristic. There is no basis to conclude that
R would reasonably have interpreted CP’s complaint as
opposition to race or other discrimination prohibited by the
EEO laws, because nothing indicated the alleged unfairness
was challenged based on an EEO-protected reason. CP’s
protest therefore does not constitute protected “opposition.”
(2) Related Protections Under Other Federal Authorities
In addition to protections under the EEO laws, there are related protections under
other federal authorities which may protect employees from punitive employer actions
for discussions related to compensation.
(a) Department of Labor Regulation - Federal Contractors
and Subcontractors
Under Executive Order 11246, as amended by Executive Order 13665 (April 8,
2014), federal contractors are prohibited from taking adverse action against employees
who discuss, disclose, or inquire about their compensation or that of other employees or
applicants. 91 The Office of Federal Contract Compliance Programs (OFCCP) of the U.S.
Department of Labor enforces this prohibition and issued implementing regulations,
available at http://www.gpo.gov/fdsys/pkg/FR-2015-09-11/pdf/2015-22547.pdf (last
visited Jan. 12, 2016). Federal contractors and subcontractors subject to E.O. 11246 are
required to refrain from discharging, or otherwise discriminating against, employees or
applicants who inquire about, discuss, or disclose their compensation or the
compensation of other employees or applicants. The OFCCP rule does not protect these
conversations in all instances, and contains certain defenses (e.g., where access to
compensation information is necessary to perform an essential job function or another
routinely assigned business task, or the function or duties of the position include
protecting and maintaining the privacy of employee personnel records, including
compensation information). 92 In addition, the OFCCP rule provides a defense for
contractors in the event that compensation inquiries are made while violating a
consistently and uniformly applied workplace rule, so long as that rule does not generally
prohibit compensation disclosures.
91
Regulations promulgated by the Office of Federal Contract Compliance Programs
(OFCCP) implementing the amended Executive Order took effect on January 11, 2016. See
http://www.dol.gov/ofccp/PayTransparency.html (providing links to the OFCCP regulations and
related publications) (last visited Jan. 12, 2016).
92
The OFCCP rule does, however, allow such employees to discuss their own
compensation with other employees, or to discuss possible disparities involving another
employee’s compensation with a management official, or while using the contractor’s internal
complaint process, or in response to a formal complaint or charge, investigation, proceeding,
hearing or action.
33
Contractors and stakeholders covered by OFCCP’s regulations may contact the
OFCCP’s Customer Service Desk at 1–800–397–6251, the OFCCP District or Area
offices, or the OFCCP’s public e-mail box at OFCCP–[email protected] with questions
about the application of the OFCCP regulatory requirements or for information on filing
a complaint within applicable time deadlines. More information is also available in the
OFCCP publications FREQUENTLY ASKED QUESTIONS: EO 13665 FINAL RULE,
http://www.dol.gov/ofccp/regs/compliance/faqs/PayTransparencyFAQs.html,
and
KNOW
YOUR
RIGHTS
–
PAY
TRANSPARENCY
FACT
SHEET,
http://www.dol.gov/ofccp/pdf/OFCCPPaySecrecyFactSheetKnowYourRights_ES_QA_5
08c.pdf (last visited Jan. 12, 2016).
(b) National Labor Relations Act (NLRA)
The NLRA protects non-supervisory employees who are covered by the Act from
employer retaliation when they discuss their wages or working conditions with their
colleagues as part of a concerted activity, even if there is no union or other formal
organization involved in the effort. 93
The NLRA prohibits employers from
discriminating against employees and job applicants who discuss or disclose their own
compensation or the compensation of other employees or applicants. The NLRA
protection, however, does not extend to supervisors, managers, agricultural workers, and
employees of rail and air carriers. More information about the scope of the NLRA
protections, charge filing, and compliance and enforcement can be found on the National
Labor Relations Board website at www.nlrb.gov.
3. Range of Individuals Who Engage in Protected Activity
Anti-retaliation protections extend to many individuals, including
those who make formal or informal allegations of EEO violations
(whether or not successful), those who serve as witnesses or
participate in investigations, those who exercise rights such as
requesting religious or disability accommodation, and even those who
are retaliated against after their employment relationship ends.
93
See, e.g., NLRB v. Main Street Terrace Care, 218 F.3d 531 (6th Cir. 2000)
(concluding that employer violated NLRA by promulgating a rule prohibiting pay discussions,
even though it was unwritten and not routinely enforced, and improperly fired plaintiff because,
in violation of oral instruction by managers, she discussed wages with co-workers to determine
whether they were being paid fairly); Wilson Trophy Co. v. NLRB, 989 F.2d 1502, 1510 (9th Cir.
1993) (“As [the employer] concedes, an unqualified rule barring wage discussions among
employees without limitations as to time or place is presumptively invalid under the Act.”);
Jeanette Corp. v. NLRB, 532 F.2d 916, 918 (3d Cir. 1976) (holding that employer’s rule broadly
prohibiting wage discussions was an unfair labor practice under § 8(a)(1), because “wage
discussions can be protected activity” and “an employer’s unqualified rule barring such
discussions has the tendency to inhibit such activity”).
34
As the above discussion illustrates, protected activity can take many forms.
Individuals who engage in protected activity include:
•
those who participate in the EEO process in any way, including as a
complainant, representative, or witness for any side, and regardless of their
job duties or managerial status; 94
•
those who oppose discrimination on behalf of themselves or others, 95 even if
their underlying discrimination allegation ultimately is not successful; 96
•
those who tell their employer they intend to file a charge or lawsuit, even if
the filing is not ultimately made; 97
•
those whom an employer mistakenly believes have engaged in protected
activity; 98
94
See infra §§ II.A.1. (discussion of participation as protected activity) and II.A.2.
(discussion of opposition as protected activity). However, the anti-retaliation provisions are not a
“catch-all” providing rights to anyone who has challenged their employer in the past for any
reason. See, e.g., Rorrer v. City of Stowe, 743 F.3d 1025 (6th Cir. 2014) (holding that plaintiff’s
prior arbitration of non-EEO claims was not protected activity that could support subsequent
ADA retaliation claim).
95
Kelley v. City of Albuquerque, 542 F.3d 802 (10th Cir. 2008) (concluding that attorney
who represented city in EEO mediation was protected against retaliation when his opposing
counsel, who subsequently was elected mayor, terminated his employment); Moore v. City of
Philadelphia, 461 F.3d 331 (3d Cir. 2006) (holding that white employees who complain about a
racially hostile work environment against African-Americans are protected against retaliation for
their complaints); EEOC v. Ohio Edison Co., 7 F.3d 541, 543 (6th Cir. 1993) (ruling that § 704(a)
protects plaintiff against retaliation even where plaintiff did not himself engage in protected
activity, but rather his co-worker engaged in protected activity on his behalf).
96
Supra note 17; see also Learned v. City of Bellevue, 860 F.2d 928, 932–33 (9th Cir.
1988) (“[I]t is not necessary to prove that the underlying discrimination in fact violated Title VII
in order to prevail in an action charging unlawful retaliation … If the availability of that
protection were to turn on whether the employee's charge were ultimately found to be
meritorious, resort to the remedies provided by the Act would be severely chilled.”).
97
See, e.g., EEOC v. L.B. Foster Co., 123 F.3d 746, 754 (3d Cir. 1997) (holding that
plaintiff engaged in protected activity when she informed her supervisor that she intended to file
charge); Gifford v. Atchison, Topeka & Santa Fe Ry Co., 685 F.2d 1149, 1156 n.3 (9th Cir. 1982)
(ruling that writing a letter to employer and union threatening to file EEOC charge is protected);
Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997) (ruling that federal employee’s contact with
agency EEO Counselor is protected activity under Title VII).
98
Fogleman v. Mercy Hospital, 283 F.3d 561, 572 (3d Cir. 2002) (holding that employee
who did not engage in protected activity could nevertheless challenge retaliation where employer
took adverse action because it erroneously believed plaintiff had engaged in protected activity);
35
•
those whose protected activity involved a different employer (e.g., employer
refuses to hire an applicant because she filed an ADA charge against her
former employer for failure to provide a sign language interpreter, or because
she opposed her previous employer’s exclusion of qualified applicants with
hearing impairments); 99
•
those whose protected activity occurred against a former employer, even
though the retaliation occurs later, after the employment relationship ends100
(e.g., former employer later retaliates by giving an unjustified, untruthful
negative job reference, by refusing to provide a job reference, or by informing
an individual’s prospective employer about the individual’s prior protected
activity); 101
see Brock v. Richardson, 812 F.2d 121, 123-25 (3d Cir. 1987) (holding that FLSA’s antiretaliation provision prohibits retaliation by employer where employer believed employee had
engaged in protected activity, even though employee had not done so).
99
For example, in McMenemy v. City of Rochester, 241 F.3d 279 (2d Cir. 2001), a
firefighter who brought a Title VII action alleging that he was denied a promotion in retaliation
for having initiated an investigation into a union president’s sexual assault of a union secretary
engaged in “protected activity.” The court rejected a lower court ruling that “protected activity”
only includes opposition to unlawful employment practices by the same covered entity that
engaged in the alleged retaliatory acts. In rejecting this argument, the court adopted the EEOC’s
position that “[a]n individual is protected against retaliation for participation in employment
discrimination proceedings involving a different entity.” This is especially true, the court held
where, as here, “the two employers have a relationship that may give one of them an incentive to
retaliate for an employee’s protected activities against the other.” See also Christopher v. Stouder
Memorial Hosp., 936 F.2d 870, 873-74 (6th Cir. 1991) (concluding that defendant’s frequent
reference to plaintiff’s sex discrimination action against prior employer warranted inference that
defendant’s refusal to hire was retaliatory).
100
Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (ruling that plaintiff may sue a former
employer for retaliation when it provided a negative reference to a prospective employer where
the plaintiff subsequently applied to work).
101
See, e.g., infra Examples 22-24 and notes 171-172; Hillig v. Rumsfeld, 381 F.3d 1028
(10th Cir. 2004) (holding that plaintiff may allege retaliation from an unjustified negative job
reference and need not prove that she would have received the job absent the reference); Jute v.
Hamilton Sundstrand Corp., 420 F.3d 166 (2d Cir. 2005) (reversing a grant of summary
judgment to the employer on a retaliatory reference claim because the evidence could support a
finding that the job offer was rescinded after prospective employer was told by former employer
that plaintiff, who had been listed as a favorable witness in a co-worker’s EEO litigation, “had a
lawsuit pending” against the company). As EEOC’s amicus curiae brief filed in Jute explained:
“An employer's practice of informing prospective employers that a former employee is involved
in litigation with his former employer is likely to harm the former employee's ability to obtain
future employment and, therefore, is reasonably likely to deter persons from filing charges.” See
also EEOC v. L.B. Foster Co., 123 F.3d 746 (3d Cir. 1997); Ruedlinger v. Jarrett, 106 F.3d 212
(7th Cir. 1997)); Serrano v. Schneider, Kleinick, Weitz, Damashek & Shoot, P.C., No. 02-CV36
•
those who raise discrimination allegations but are ultimately determined not to
be protected by the substantive provisions of the discrimination laws (e.g.,
retaliation against an individual for filing a disability discrimination charge,
even if it is ultimately determined that she is not qualified for the position held
or desired, 102 or retaliation against an individual for raising an age
discrimination allegation, even if he is not age 40 or over); 103 and,
•
those whose protected activity related to any provision of the ADA, not just
the employment discrimination title of the statute (e.g., opposition to
discrimination in state and local government services, public
accommodations, commercial facilities, or telecommunications). 104
See also “Third Party Retaliation,” infra, at § II.B.4.
B. Adverse Action
Retaliation expansively reaches any action that is “materially
adverse,” meaning any action that might well deter a reasonable
person from engaging in protected activity.
1. General Rule
The anti-retaliation provisions make it unlawful to take an “adverse action”
against an individual because s/he engaged in protected activity. The definition of
“adverse action” in the anti-retaliation provisions is broader than an “adverse action”
under the non-discrimination provisions. 105 Instead, retaliation expansively reaches any
1660, 2004 WL 345520, at *7-8 (S.D.N.Y. Feb. 24, 2004) (holding that informing a prospective
employer about an employee’s lawsuit constitutes an adverse action under 704(a) where “surely”
the plaintiff's former supervisor “knew or should have known” that, by revealing the fact that the
plaintiff had sued her former employer, “he could severely hurt her chances of finding
employment”).
102
Krouse v. Am. Sterilizer, 126 F.3d 494 (3d Cir. 1997) (ADA). The ADA contains an
additional protection for individuals who have been subject to interference with the exercise of
rights under the ADA, by virtue of coercion, threats, or other pressure. Such interference is
separately prohibited under the ADA, in addition to retaliation 42 U.S.C. § 12203(b); see infra §
IV.
103
Anderson v. Phillips Petrol., 722 F. Supp. 668, 671-72 (D. Kan. 1989) (ADEA).
104
42 U.S.C. § 12203(a).
105
See Burlington N., 548 U.S. at 67 (“Title VII's substantive [discrimination] provision
and its antiretaliation provision are not coterminous” because the “scope of the antiretaliation
provision extends beyond workplace-related or employment-related retaliatory acts and harm …
37
action that is “materially adverse,” meaning any action that might well deter a reasonable
person from engaging in protected activity. 106 An action need not be materially adverse
standing alone, as long as the employer’s retaliatory conduct, considered as a whole,
would deter protected activity. 107 This standard and its underlying rationale apply to
retaliation under all the statutes enforced by the EEOC, and also apply to both private and
federal sector employers. 108 The standard can be satisfied even if the individual was not
in fact deterred. 109
Interpreting the antiretaliation provision to provide broad protection from retaliation helps ensure
the cooperation upon which accomplishment of the Act's primary objective depends.”).
106
Id.
107
See, e.g., Wooten v. McDonald Transit Assocs., Inc., 775 F.3d 689, 696 (5th Cir.
2015) (holding that plaintiff satisfied adverse action requirement by describing “variety of
concrete actions . . . that together might amount to an adverse employment action”); Sanford v.
Main Street Baptist Church Manor, Inc., 327 F. App’x 587, 599 (6th Cir. 2009) (“[W]hile some
of the incidents alone may not rise to the level of an adverse employment action, the incidents
taken together might dissuade a reasonable worker from making or supporting a discrimination
charge.”).
108
This broad definition of “materially adverse” from Burlington Northern applies not
only to private, and state and local government employment, but also to federal sector
employment. Although the federal sector retaliation provision of Title VII refers to “personnel
actions affecting employees or applicants,” rather than actions that “affect employment or alter
the conditions of the workplace,” the Commission has taken the position that these two retaliation
standards must be the same. See 77 FR 43498 (July 25, 2012), Preamble to Final Rule, 29 C.F.R.
Part 1614 (July 25, 2012), https://federalregister.gov/a/2012-18134. Indeed, all the appellate
courts to have considered this issue appear to agree. See, e.g., Caldwell v. Johnson, 289 F.
App’x. 579, 589 (4th Cir. 2008) (unpublished) (applying Burlington Northern and expressly
rejecting different standards for retaliation claims in the private sector and for federal employees,
the court noted that the language proscribing discrimination by the federal government in “[a]ll
personnel actions,” 42 U.S.C. §2000e-16(a), “covers a broader range of activity than does the
private anti-discrimination statute, which must involve activity related to ‘compensation, terms,
conditions, or privileges of employment’”); see also De-Caire v. Mukasey, 530 F.3d 1, 19 (1st
Cir. 2008) (applying Burlington Northern to retaliation claim of deputy U.S. Marshal); Thomas
v. Miami Veterans Med. Ctr., 290 Fed.App’x. 317, 320 (11th Cir. 2008) (applying Burlington
Northern to retaliation claim of employee of Department of Veterans Affairs and stating, “[t]he
Supreme Court has held that in order to sustain a Title VII retaliation claim, an employee must
show that `a reasonable employee would have found the challenged action materially adverse’”);
Lapka v. Chertoff 517 F.3d 974, 985 (7th Cir. 2008) (applying Burlington Northern to retaliation
claim by employee of the Department of Homeland Security); Novak v. Nicholson, 231
Fed.App’x. 489, 495 (7th Cir. 2007) (applying Burlington Northern to retaliation claim by former
employee of Department of Veterans Affairs); Patterson v. Johnson, 505 F.3d 1296, 1299 (D.C.
Cir. 2007) (applying Burlington Northern standard to claim by employee of the United States
Environmental Protection Agency); Weber v. Battista, 494 F.3d 179, 186 (D.C. Cir. 2007)
(applying Burlington Northern to retaliation claim by employee of the National Labor Relations
Board); Nair v. Nicholson, 464 F.3d 766, 768-69 (7th Cir. 2006) (applying Burlington Northern
38
2. Types of Materially Adverse Actions
Work-Related Actions. The most obvious types of adverse actions are denial of
promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge.110
Other types of adverse actions include work-related threats, warnings, reprimands, 111
transfers, 112 negative or lowered evaluations, 113 verbal or physical abuse (whether or not
to retaliation claim by employee of Department of Veteran Affairs and stating, “[w]hile it is now
settled that retaliation to be actionable need not take the form of adverse employment action ...
[t]he test is whether the conduct alleged as retaliation would be likely to deter a reasonable
employee from complaining about discrimination.”); de Jesus v. Potter, 211 Fed.App’x. 5, 11-12
(1st Cir. 2006) (remanding retaliation claim by employee of United States Postal Service in light
of Burlington Northern, which “chang[ed] the legal standard to be applied to claims of retaliation
brought under Title VII”); see also Hare v. Potter, 220 F. App’x. 120 (3d Cir. 2007)
(unpublished) (applying Burlington Northern to retaliatory hostile work environment alleged by
U.S. Postal Service employee); Twisdale v. Paulson, 595 F. Supp. 686 (S.D. W.Va. 2009)
(rejecting government’s argument that Burlington Northern does not apply in the federal sector,
based on appellate case law).
109
See, e.g., Patane v. Clark, 508 F.3d 106, 116 (2d Cir. 2007) (rejecting the employer’s
argument that the challenged action was not sufficiently adverse under Burlington Northern since
it did not dissuade the plaintiff herself from reporting sexual harassment again when it recurred,
the court also commented that this argument was “entirely unconvincing, since it would require
that no plaintiff who makes a second complaint about harassment could ever have been retaliated
against for an earlier complaint”) (emphasis in original).
110
Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1104 (10th Cir. 1998) (observing
that suspensions and terminations “are by their nature adverse”).
111
Millea v. Metro-N. R.R. Co., 658 F.3d 154, 165 (2d Cir. 2011) (applying the Title VII
retaliation standard for materially adverse action in an FMLA retaliation claim, the court held that
a letter of reprimand is materially adverse even if it “does not directly or immediately result in
any loss of wages or benefits, and does not remain in the employment file permanently”); Ridley
v. Costco Wholesale Corp., 217 F. App’x. 130 (3d Cir. 2007) (upholding jury verdict finding that
although demotion was not retaliatory, the post-demotion transfer to warehouse, counseling
notices for minor incidents, and failure to investigate complaints about these actions were
unlawful retaliation).
112
Kesler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 209 (2d Cir. 2006)
(holding that transfer of high level executive without any loss of pay was actionable as retaliation
where he was relegated to a non-supervisory role and non-substantive duties).
113
See generally Walker v. Johnson, 798 F.3d 1085 (D.C. Cir. Aug. 18, 2015) (“Whether
an assessment is adverse does not hinge on whether it was lowered; rather, the question is
whether discrimination or retaliation caused a significant, tangible harm . . . Proof that a rating
unchanged from a prior period was nonetheless materially adverse could be difficult, but cannot
categorically be ruled out. An employee whose volume and quality of work demonstrably
improved, or who had significant difficulties at work in the prior period that she had overcome,
might fairly deserve a significantly improved rating and would be materially harmed if
discrimination prevented appropriate recognition.”); Peques v. Minetta, 2006 WL 2434936
39
it rises to the level of creating a hostile work environment), transfers to less prestigious or
desirable work 114 or work locations, 115 or any other type of adverse treatment that in the
circumstances might well dissuade a reasonable person from engaging in protected
activity. For example, as one appellate court has observed, “[a] formal reprimand issued
by an employer is not a ‘petty slight,’ ‘minor annoyance,’ or ‘trivial’ punishment; it can
reduce an employee’s likelihood of receiving future bonuses, raises, and promotions, and
it may lead the employee to believe (correctly or not) that his job is in jeopardy.” 116
Another court of appeals reasoned that the same can be said of lowered performance
appraisals:
If the Supreme Court views excluding an employee from a
weekly training lunch that contributes significantly to the
employee’s professional development as materially adverse
conduct, see Burlington [Northern and Santa Fe Ry. Co. v.
White, 548 U.S. 53, 69 (2006)], then markedly lower
performance-evaluation scores that significantly impact an
(D.D.C. Aug. 22, 2006) (holding that the lowering of an evaluation to “proficient” after prior
assessments of “distinguished” or “meritorious,” along with harassing actions at a company
meeting and a supervisor’s comments that plaintiff’s EEO complaint will “come back to haunt
you,” were sufficient to permit retaliation claim to proceed to jury).
114
Billings v. Town of Grafton, 515 F.3d 39 (1st Cir. 2008) (ruling that while the
plaintiff’s own displeasure, standing alone, would be insufficient to render an action materially
adverse, there was sufficient evidence for a jury to find that in retaliation for complaining about
sexual harassment she had been subject to an adverse action when she was transferred to an
objectively less prestigious position that reported to a lower-ranked supervisor, provided much
less contact with the Board of Selectmen, the Town, and members of the public, and required less
experience and fewer qualifications).
115
Loya v. Sebelius, 840 F. Supp. 2d 245 (D.D.C. 2012) (holding that it was materially
adverse to move plaintiff’s office to a different building in the same complex, where the move
isolated her from her colleagues, made it difficult for her to complete her job duties, diminished
her standing as a senior staff member, contributed to a loss of responsibilities, cut off her access
to administrative support services, forced her to travel between buildings in dangerously wet or
icy walking conditions, and made it difficult for her to manage her diabetes).
116
Millea, 658 F.3d at 165; see also Alvarado v. Metro. Transp. Auth., 2012 WL 1132143
(S.D.N.Y. Mar. 30, 2012) (holding that retaliation claim could proceed to trial where “Letter of
Instruction” was permanently placed in the plaintiff’s personnel file and could be used in future
disciplinary actions); cf. White v. Dep’t of Corr. Servs., 814 F. Supp. 2d 374, 388 (S.D.N.Y.
2011) (ruling that while a counseling memo and negative comment in a performance evaluation
may not be adverse actions in themselves, a jury could find them actionable when considered in
combination with a notice of discipline). See also supra notes 111-113 and infra note 122.
40
employee’s wages or professional advancement are also
materially adverse. 117
Actions That Are Not Work-Related. An adverse action may also be an action
that has no tangible effect on employment, or even an action that takes place exclusively
outside of work, as long as it might well dissuade a reasonable person from engaging in
protected activity. Prohibiting only employment-related actions would not achieve the
goal of avoiding retaliation because “an employer can effectively retaliate against an
employee by taking actions not directly related to his employment or by causing him
harm outside the workplace.” 118 The Supreme Court in Burlington observed that, while
the substantive antidiscrimination provisions seek elimination of discrimination that
affects employment opportunities because of employees’ racial, ethnic, or other protected
status, the anti-retaliation provisions seek to secure that objective by preventing an
employer from interfering in a materially adverse way with efforts to enforce the law’s
basic guarantees. 119
Additional Examples. For purposes of a retaliation claim, a materially adverse
action not only includes any action that affects the terms or conditions of employment
that would be actionable as discrimination (e.g., termination, constructive discharge,
reassignment to a lower paying or otherwise less desirable job, transfer to a position that
is less prestigious or onerous, denial of overtime, or harassment), but also more broadly
encompasses any action that would be reasonably likely to deter protected activity.
Additional examples may include:
•
disparaging the person to others or in the media; 120
117
Halfacre v. Home Depot, U.S.A., Inc., 221 Fed. App’x. 424, 433 (6th Cir. 2007)
(citing Burlington N., 548 U.S. at 69-70, in which the Supreme Court stated that excluding an
employee from a weekly training lunch “might well deter a reasonable employee from
complaining”); Perez-Cordero v. Wal-Mart P. R., Inc., 656 F.3d 19, 31 (1st Cir. 2011)
(“Although Pérez–Cordero did not suffer a tangible employment detriment in response to this
protected activity, such as a retaliatory firing, we have previously held that the escalation of a
supervisor's harassment on the heels of an employee's complaints about the supervisor is a
sufficiently adverse action to support a claim of employer retaliation.”).
118
Burlington, 548 U.S. at 63 (emphasis in original).
119
Id. at 63-64.
120
Szeinbach v. Ohio St. Univ., 493 F. App’x 690 (6th Cir. 2012) (holding that
retaliatory accusations of misconduct in plaintiff’s academic research, made in emails to a journal
editor and professors at other universities, could be materially adverse); Dixon v. Int’l. Bhd. of
Police Officers, 504 F.3d 73, 84 (1st Cir. 2007) (affirming jury verdict in plaintiff’s favor, the
court held that comments by a union president on television program regarding plaintiff being
unfit for her job and implying she would pay a price for her discrimination claim constituted
retaliation).
41
•
making false reports to government authorities; 121
•
threatening reassignment;
•
scrutinizing work or attendance more closely than that of other
employees, without justification;
•
giving an inaccurately lowered performance appraisal or job reference,
even if not unfavorable; 122
121
Greengrass v. Int’l Monetary Systems, LTD, 776 F.3d 481 (7th Cir. 2015) (ruling that
employer’s listing of employee’s name in public filing with the Securities and Exchange
Commission was materially adverse); Lore v. City of Syracuse, 670 F.3d 127, 164 (2d Cir. 2010)
(ruling that a statement to the press that employee had stolen paychecks could be found to be
materially adverse action, because “though not affecting the terms or conditions of Lore's
employment, [the statement] might well have dissuaded a reasonable police officer from making
a complaint of discrimination”); see also Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th
Cir. 1996) (holding that instigating criminal theft and forgery charges against former employee
who filed EEOC charge was retaliatory).
122
See, e.g., Jones v. Bernanke, 557 F.3d 670 (D.C. Cir. 2009) (allowing retaliation
claim to proceed where plaintiff received an evaluation rating his performance as
“commendable,” even though in prior years he had received higher ratings of “outstanding” or
“exceptional”); Halfacre, 221 Fed. App’x. at 432-33 (explaining that because “markedly lower
performance-evaluation scores that significantly impact an employee’s wages or professional
advancement are also materially adverse,” an overall “achiever” performance rating might
nevertheless be an adverse action because it was a lower rank than plaintiff received before filing
his discrimination charge, and resulted in a 55-cents rather than 75-cents-per-hour raise); Parikh
v. N.Y.C. Transit Auth., 2010 WL 364526 (E.D.N.Y. Feb. 2, 2010) (“[W]hether a professional in
mid-career, attempting to establish a record of good performance in order to obtain a higher
position, would be deterred from engaging in protected activity by the receipt of marginal ratings
in his permanent record is a question that should be answered by the jury.”); Pequees v. Mineta,
2006 WL 2434936 (D.D.C. Aug. 22, 2006) (denying employer’s summary judgment motion in
case alleging retaliatory lowering of an evaluation to “proficient” after prior evaluations of
“distinguished” and “meritorious”); Hashimoto v. Dalton, 118 F.3d 671, 675-76 (9th Cir. 1997)
(ruling retaliatory job reference violated Title VII even though it did not cause failure to hire);
see also Porter v. Shah, 606 F.3d 809 (D.C. Cir. 2010) (ruling that an interim performance of
“borderline acceptable” was not materially adverse because it was delivered orally, with no
written record placed in the plaintiff’s personnel file, and the evaluation was superseded by the
plaintiff’s year-end review). But see Sutherland v. Mo. Dep’t of Corr., 580 F.3d 748 (8th Cir.
2009) (affirming summary judgment for the employer on claim alleging performance evaluation
was reclassified from “highly successful” to “successful” in retaliation for plaintiff’s complaints
about sexual harassment, the court held that the plaintiff was not subjected to a materially adverse
action since the lower satisfactory evaluation did not, by itself, materially alter the plaintiff’s
employment, and the lowered evaluation did not result in any reductions in pay, salary, benefits,
or prestige).
42
•
removal of supervisory responsibilities; 123
•
abusive verbal or physical behavior that is reasonably likely to deter
protected activity, even if it is not sufficiently “severe or pervasive” to
create a hostile work environment;
•
requiring re-verification of work status, making threats of deportation,
or initiating other action with immigration authorities; 124 or,
•
any other action that might well deter reasonable individuals from
engaging in protected activity. 125
123
Geleta v. Gray, 645 F.3d 408, 412 (D.C. Cir. 2011) (ruling that fact issue for jury
existed as to material adversity when, among other things, plaintiff went from supervising 20
employees to supervising none); Burke v. Gould, 286 F.3d 513, 515, 521-22 (D.C. Cir. 2002)
(denying employer’s motion for summary judgment on retaliation claim challenging removal of
supervisory duties from “supervisory computer systems analyst”); see also Higbie v. Kerry, 2015
WL 1262499 (5th Cir. Mar. 20, 2015) (unpublished).
124
EEOC v. Queen’s Med. Ctr., Civil Action No. 01-CV-00389 (D. Haw. consent decree
entered July 2002) (settlement of retaliation case alleging that shortly after employee lodged an
internal complaint, employer contacted the Immigration and Naturalization Service to retract its
support for his permanent visa application, resulting in the INS initiating a hearing into his
immigration status and therefore requiring him to hire a lawyer to defend his lawful resident
status; case was settled for $150,000 for emotional distress damages); EEOC v. Holiday Inn
Express, No. 0:00-cv-0034 (D. Minn. consent decree entered Jan. 11, 2000) (employer who
allegedly reported workers to INS after they engaged in protected activity under NLRA and Title
VII settled discrimination and retaliation claims for $72,000; INS deferred deportation action for
two years to allow the workers time to be witnesses in case); cf. EEOC v. The Restaurant Co.,
490 F. Supp. 2d 1039 (D. Minn. 2006) (denying summary judgment for the employer, the court
ruled that timing of human resources director asking plaintiff to submit valid I-9 documentation
two days after reporting sexual harassment could be found by a jury to support an inference of
retaliatory motive for her subsequent termination); see also Bartolon-Perez v. Island Granite &
Stone, Inc., 2015 WL 3644095 (S.D. Fla. June 10, 2015) (citing Title VII case law, the court held
that a factfinder could conclude an employer engaged in retaliation under the FLSA where it
knew about plaintiff’s immigration status but waited until after he engaged in protected activity to
“hold it … over his head”).
125
Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253 (11th Cir. 2010) (ruling that
terminating plaintiff sooner than planned due to her protected activity was actionable as
retaliation); Passer v. Am. Chem. Soc., 935 F.2d 322, 331 (D.C. Cir. 1991) (holding that
canceling a symposium in honor of retired employee who filed ADEA charge was retaliatory).
See also EEOC v. Cardiac Sci. Corp., Civil Action No. 2:13-cv-01079 (E.D. Wis. consent decree
entered July 2014) (settlement of retaliation claim based on employer’s alleged refusal to provide
severance payments and benefits and payments previously promised because it learned employee
had previously filed an EEOC charge).
43
To the extent lower courts applying Burlington Northern have found that some of
the above-listed actions are not significant enough to deter protected activity, the
Commission concludes that those decisions are contrary to the broad reasoning and
examples provided by the Supreme Court. The Court has made clear that whether an
action is reasonably likely to deter protected activity depends on the surrounding facts
and circumstances -- although the standard is “objective,” it is phrased in “general terms”
because the “significance of any given act will often depend on the particular
consequences. Context matters.” 126 An “act that would be immaterial in some situations
is material in others.” 127 Indeed, the Supreme Court has held that transferring plaintiff to
a harder, dirtier job within the same pay grade and job category and suspending her
without pay for 37 days even though the lost pay was later reimbursed, were both
“materially adverse actions” that could be challenged as retaliation. 128 Other examples of
actionable retaliation cited by the Supreme Court include the FBI’s refusing to investigate
“death threats” against an agent, the filing of false criminal charges against a former
employee, changing the work schedule of a mother with school-age children, and
excluding an employee from a weekly training lunch that contributes to professional
advancement. 129
In addition, termination of the union grievance process or other action relating to
blocking access to otherwise available remedial mechanisms could constitute a materially
adverse action in violation of the anti-retaliation provisions of the EEO statutes. 130
The Commission and courts use the foregoing fact-specific analysis to determine
if the employer action in question would be likely to deter participation or opposition.
Petty slights and trivial annoyances are not actionable as retaliation, as they are not likely
to dissuade an employee from engaging in protected activity. For example, courts have
concluded on the facts of given cases that failing to grant a retired professor “emeritus”
status was not a materially adverse action 131 and that occasional brief delays by an
126
Burlington N., 548 U.S. at 69 (citing Oncale v. Sundowner Offshore Servs., 523 U.S.
75, 81-82 (1998)).
127
Id. (citation omitted). See, e.g., O’Neal v. City of Chi., 588 F.3d 406, 409-10 (7th Cir.
2009) (holding that alleged repetitive reassignments negatively affecting plaintiff’s eligibility to
be promoted from sergeant to lieutenant on the police force constituted materially adverse
action).
128
Burlington N., 548 U.S. at 71-73.
129
Id. at 63, 69 (citations omitted). See also Williams v. W.D. Sports, N.M., Inc., 497
F.3d 1079, 1090 (10th Cir. 2007) (denying summary judgment because defendants’ threats to ruin
plaintiff’s family and marriage, and opposition to her employment benefits, constituted adverse
actions that would have dissuaded a reasonable person from engaging in protected activity).
130
131
See, e.g., EEOC v. Board of Governors, 957 F.2d 424 (7th Cir. 1992).
Zelnick v. Fashion Inst. of Tech., 464 F.3d 217 (2d Cir. 2006).
44
employer in issuing refund checks to an employee that involved small amounts of money
were not materially adverse. 132 Such actions are considered trivial in comparison to the
transfer to harder work, the exclusion from a weekly training lunch, or the unfavorable
schedule change described by the Supreme Court in Burlington Northern as likely to
deter protected activity.
If the employer’s action would be reasonably likely to deter protected activity, it
can be challenged as retaliation regardless of the level of harm. It is no defense that the
employer’s actions fell short of their goal. 133 As one court stated, “an employer who
retaliates cannot escape liability merely because the retaliation falls short of its intended
result.” 134 The degree of harm suffered by the individual “goes to the issue of damages,
not liability.” 135 Regardless of the degree or quality of harm to the particular
complainant, retaliation harms the public interest by deterring others from filing
charges. 136 An interpretation of Title VII that permits some forms of retaliation to go
unpunished would undermine the effectiveness of the EEO statutes and conflict with the
language and purpose of the anti-retaliation provisions. Thus, for example, the fact that a
retaliatory reference did not affect the individual’s job prospects may affect the relief that
is due, but would not preclude a finding of liability. 137
EXAMPLE 16
Workplace Surveillance
CP filed a charge alleging that he was racially harassed by
his supervisor and co-workers. After learning about the
charge, CP’s manager asked two employees to keep CP
under surveillance and report back about his activities. The
EEOC finds reasonable cause to believe that the
surveillance constitutes a materially adverse action because
132
Fanning v. Potter, 614 F.3d 845, 850 (8th Cir. 2010) (ruling that a brief delay in
payment of $300 quarterly health benefit refund representing less than two percent of plaintiff’s
monthly income was not materially adverse).
133
Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997).
134
EEOC v. L. B. Foster, 123 F.3d, 746, 754 (3d Cir. 1997).
135
Hashimoto, 118 F.3d at 676; see also L. B. Foster, 123 F.3d at 754 n.4 (ruling that
plaintiff need not prove retaliatory denial of job reference caused prospective employer to reject
her; such a showing is relevant only to damages, not liability); Smith v. Sec’y of Navy, 659 F.2d
1113, 1120 (D.C. Cir. 1981) (“The questions of statutory violation and appropriate statutory
remedy are conceptually distinct. An illegal act of discrimination, whether based on race or some
other factor such as a motive of reprisal, is a wrong in itself under Title VII, regardless of whether
that wrong would warrant an award of [damages].”).
136
Garcia v. Lawn, 805 F.2d 1400, 1405 (9th Cir. 1986) (citation omitted).
137
See supra note 135.
45
it is likely to deter protected activity, and is unlawful if it
was conducted because of CP’s protected activity.
EXAMPLE 17
Threats to Report Immigration Status
R, a contractor, employs farm workers and other laborers
whom it places in rural agricultural and manufacturing
facilities operated by R’s corporate clients. Together, R
and these facilities are joint employers under the EEO laws.
R and its clients suspect that many of the employees may
be undocumented workers who may have presented false
documentation when hired, but, in order to meet their
staffing needs, do not attempt to verify their status. Several
of R’s employees, who are undocumented, complain to a
client supervisor and to R about sexual harassment by male
co-workers, including physical assaults and persistent
unwelcome sexual remarks and advances. The client
supervisor and R order the workers to return to work and
threaten to expose the workers' immigration status if they
continue to complain about the harassment. Threatening to
report the workers’ immigration status to government
authorities, or actually reporting the workers, is materially
adverse and actionable as retaliation against workers who
have engaged in protected activity under the EEO laws
because it is likely to deter them from engaging in
protected activity. If an EEOC charge is filed, both R and
the facility owner can be found jointly liable for retaliation.
Neither the workers’ undocumented status, nor the fact they
were placed by a contractor acting as a staffing firm, is a
defense. 138
138
See supra note 124; see also Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95 (1973)
(“Tit[le] VII protects all individuals from unlawful discrimination, whether or not they are
citizens of the United States.”); EEOC v. DeCoster Farms, No. 3:02-cv-03077-MWB (N.D. Iowa,
consent decree entered September 2002) (EEOC alleged that supervisors sexually harassed and
raped female workers, especially those of Mexican and other Hispanic national origin - some of
whom were undocumented at the time - and threatened to deport and terminate any of the victims
who cooperated with EEOC; consent decree provided $1.525 million; undocumented victims
were granted deferred status and visas); EEOC v. Quality Art, No. 2:00-cv-01171-SMM (D. Ariz.
consent decree entered August 2001) (case involved sexual and national origin harassment;
employer threatened to report employees to the INS and subsequently contacted INS in an
attempt to secure arrest and/or deportation; consent decree provided $3.5 million to victims).
46
EXAMPLE 18
Fact-Specific Determination
CP filed an EEOC charge alleging that she was denied a
promotion because of her gender. One week later, her
supervisor invited a few employees out to lunch. CP
believed that her supervisor excluded her from lunch
because of her charge. Even if the supervisor chose not to
invite CP because of her charge, this would not constitute
unlawful retaliation because it is not reasonably likely to
deter protected activity. By contrast, if CP’s supervisor
invites all employees in CP’s unit to regular weekly
lunches, and CP is excluded from these lunches after she
files the sex discrimination charge, this might constitute
unlawful retaliation since it could reasonably deter CP or
others from engaging in protected activity. 139
EXAMPLE 19
Workplace Sabotage, Assignment to Unfavorable
Location, and Abusive Scheduling Practices
After CP cooperated in a workplace investigation of a coworker’s race discrimination complaint, a supervisor
intentionally left a window ajar to prevent CP from setting
the building alarm (one of his job duties) and thereby
subjected him to discipline. The supervisor also engaged in
punitive scheduling, including shortening off-duty time
between workdays and changing the employee’s work
schedule in a way that would require him to work alone at a
more dangerous facility than the one at which he usually
worked. The EEOC finds reasonable cause to believe that
these acts of workplace sabotage, assignment to an
unfavorable location, and punitive scheduling constitute
materially adverse actions. 140
139
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006) (“A supervisor's
refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to
retaliate by excluding an employee from a weekly training lunch that contributes significantly to
the employee's professional advancement might well deter a reasonable employee from
complaining about discrimination.”).
140
Hicks v. Baines, 593 F.3d 159 (2d Cir. 2010) (applying Burlington standard to
retaliation claims under § 1981, § 1983, and state law).
47
EXAMPLE 20
Disclosure of Confidential EEO Information
and Assignment of Disproportionate Workload
Three weeks after a federal employee sought EEO
counseling regarding her complaint of disability and gender
discrimination, her supervisor posted the EEO complaint on
the agency’s intranet where coworkers accessed it. The
supervisor also increased her workload to five to six times
that of other employees. Both of the supervisor’s actions
are materially adverse and actionable as alleged
retaliation. 141
3.
Harassing Conduct as Retaliation
Some forms of retaliatory conduct are commonly characterized as “retaliatory
harassment,” but such conduct, like any other retaliation, is unlawful if it is reasonably
likely to deter protected activity. As a result, harassing conduct that is alleged to be both
discriminatory (e.g., based on race, sex, or disability) and retaliatory may prove to be
sufficiently material to deter protected activity yet, at the same time, insufficiently severe
or pervasive to create a hostile work environment. In other words, retaliation and hostile
work environment set different thresholds for demonstrating actionable discrimination.
4.
Third Party Retaliation
a. Materially Adverse Action Against Another
Sometimes an employer takes a materially adverse action against an employee
who engaged in protected activity by harming a third party who is closely related to or
associated with the complaining employee. 142 The Supreme Court explained that it is
“obvious that a reasonable worker might be dissuaded from engaging in protected activity
if she knew that her fiancé would be fired.” 143 Similarly, if an employer punishes an
employee for engaging in protected activity by cancelling a vendor contract with the
employee’s husband (even though he was employed by a contractor, not the employer)
141
Mogenhan v. Napolitano, 613 F.3d 1162, 1166-67 (D.C. Cir. 2010) (holding that
publicizing an employee’s EEO complaint is a materially adverse action because it can chill a
reasonable employee from engaging in further protected activity; similarly, an employee might be
dissuaded from filing a complaint if she reasonably thought that her employer would retaliate by
“burying her in work”).
142
Thompson v. N. Am. Stainless, LP, 562 U.S. 170 (2011); see also EEOC v. Fred
Fuller Oil Co., Inc., 2014 WL 347635 (D.N.H. Jan. 31, 2014) (refusing to dismiss retaliation
claim involving close friend of individual who had filed EEOC charge).
143
Thompson, 562 U.S. at 174.
48
that action would dissuade a reasonable worker from engaging in protected activity. 144
Although there is no “fixed class of relationships for which third-party reprisals are
unlawful[,] . . . firing a close family member will almost always meet the Burlington
standard, and inflicting a milder reprisal on a mere acquaintance will almost never do
so.” 145
b.
Standing to Challenge: “Zone of Interests”
Under such circumstances, the employee who engaged in protected activity has a
retaliation claim. Moreover, not only may the employee who engaged in protected
activity bring a claim, but so too may the third party who was directly harmed by the
employer’s retaliation. 146 As the Supreme Court stated, the third party was not an
“accidental victim”; “[t]o the contrary, injuring him was the employer’s intended means
of harming the [employee who engaged in protected activity].” 147 Thus, the third party
“falls within the ‘zone of interests’ sought to be protected by [the retaliation provision]”
and therefore has standing under it to seek recovery from the employer for his harm. 148
144
McGhee v. Healthcare Servs. Group, Inc., 24 A.D. Cas. (BNA) 410, 2011 WL 818662
(N.D. Fla. Mar. 2, 2011) (ruling that plaintiff could proceed with a Title VII retaliation claim
based on allegations that after his wife filed an EEOC charge against her employer, plaintiff was
fired from his job with a company that held a contract with his wife’s employer, allegedly at the
request of his wife’s employer).
145
Thompson, 562 U.S. at 178.
146
The third party may bring a claim even though the third party did not engage in the
protected activity, and even if the third party has never been employed by the defendant
employer. Tolar v. Cummings, No. 2:13-cv-00132-JEO, 2014 WL 3974671, at *12 (N.D. Ala.
Aug, 11, 2014) (“Regardless of whether the plaintiffs are employed by the defendant, . . . the
harm they suffered is no less a product of the defendant’s purposeful violation of the antiretaliation provision.”).
147
Id.
148
Id. at 177 (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990) (internal
quotation marks omitted)); see also Brief for the United States as Amicus Curiae at 18, Thompson
v. N. Am. Stainless, L.P., 562 U.S. 170 (2011) (arguing petitioner was “aggrieved” by his own
dismissal, which was the employer’s means of retaliating against his fiancée for alleging sex
discrimination).
49
C. Causal Connection
A materially adverse action does not violate the EEO laws unless the
employer took the action because the charging party engaged in
protected activity.
Unlawful retaliation is established when it is proven that the employer took the
adverse action because the charging party engaged in protected activity. 149 There are
instances in which this motivation is self-evident because the employer acknowledges or
betrays a retaliatory motive for the adverse action, verbally or in writing. 150 However,
where instead the employer identifies a lawful reason, the charging party will have to
produce enough evidence to discredit the employer’s explanation and prove the real
reason was retaliation. In private sector and state and local government cases, the
individual must show that “but for” a retaliatory motive, the employer would not have
taken the adverse action. 151 It does not require that retaliation be the “sole cause” of the
149
The retaliatory animus need not necessarily be held by the individual who takes the
final challenged action. An employer still may be vicariously liable for an adverse action if one
of its agents other than the ultimate decision maker is motivated by discriminatory or retaliatory
animus and intentionally and proximately causes the action. Staub v. Proctor Hosp., 562 U.S.
411 (2011) (applying “cat’s paw” theory to a retaliation claim under the Uniformed Services
Employment and Reemployment Rights Act, which is “very similar to Title VII”); Zamora v. City
of Houston, 798 F.3d 326 (5th Cir. 2015) (applying Staub and Univ. of Tex. SW Med. Ctr. v.
Nassar, 133 S. Ct. 2517 (2013), the court held there was sufficient evidence to support jury
verdict finding retaliatory suspension); Bennett v. Riceland Foods, Inc., 721 F.3d 546 (8th Cir.
2013) (applying Supreme Court’s Staub cat’s paw rationale, the court upheld jury verdict in
favor of white workers who were laid-off by management after complaining about their direct
supervisors’ use of racial epithets to disparage minority coworkers, and the supervisors
recommended them for lay-off shortly after their original complaints were found to have merit).
150
For example, in one case the employer told the employee being terminated that
“[y]our deposition was the most damning to [the employer’s] case, and you no longer have a
place here. . . .” Merritt, 120 F.3d at 1190-91.
151
Nassar, 133 S. Ct. at 2534 (holding that “but for” causation is required to prove Title
VII retaliation claims raised under 42 U.S.C. § 2000e-3(a), even though Title VII claims raised
under other statutory provisions only require “motivating factor” causation); Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167 (2009) (holding that “but for” causation is required to prove ADEA
claims brought under 29 U.S.C. § 623). In Burrage v. United States, 134 S. Ct. 881, 888-89
(2014), the Supreme Court recognized that “but for” causation can include multiple causes, and
clarified its earlier decisions in Nassar and Gross by describing the causation standard as “a but
for cause”:
Given the ordinary meaning of the word “because,” we held that § 2000e–3(a)
“require[s] proof that the desire to retaliate was [a] but-for cause of the
challenged employment action.” Nassar, …133 S. Ct., at 2528. The same result
obtained in an earlier case interpreting a provision in the Age Discrimination in
Employment Act … we held that “[t]o establish a disparate-treatment claim
50
action. 152 ”But for” causation, however, precludes a burden-shifting “mixed motives”
analysis. 153
For example, an employer may contend that it could not have been motivated by
retaliation because it was not aware of the protected activity, 154 or that it was aware the
employee had made complaints but did not know they concerned discrimination. 155 Or,
under the plain language of [§ 623(a)(1) ] ... a plaintiff must prove that age was
[a] ‘but for’ cause of the employer's adverse decision.” Gross v. FBL Financial
Services, Inc., 557 U.S. 167, 176, 129 S. Ct. 2343, 174 L.Ed.2d 119 (2009).
134 S. Ct. at 889. The Commission has held that the “but for” standard does not apply to
retaliation claims by federal sector applicants or employees under Title VII or the ADEA because
the relevant federal sector statutory language does not employ the “because of” language on
which the Court based its holdings in Nassar and Gross. Petitioner v. Dep’t of Interior, EEOC
Petition No. 0320110050 (July 16, 2014). Rather, these federal sector provisions contain a
“broad prohibition of ‘discrimination’ rather than a list of specific prohibited practices.” See
Gomez-Perez, 553 U.S. at 487-88 (holding that the broad prohibition in 29 U.S.C. § 633a(a) that
personnel actions affecting federal employees who are at least 40 years of age “shall be made free
from any discrimination based on age” prohibits retaliation by federal agencies); see also 42
U.S.C. § 2000e–16(a) (personnel actions affecting federal employees “shall be made free from
any discrimination based on race, color, religion, sex, or national origin”).
152
Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013) (“‘[B]ut-for’ causation
does not require proof that retaliation was the only cause of the employer’s action, but only that
the adverse action would not have occurred in the absence of a retaliatory motive.”).
Circuit courts analyzing “but for” causation under other EEOC-enforced laws also have
explained that the standard does not require “sole” causation. See, e.g., Ponce v. Billington, 679
F.3d 840, 846 (D.C. Cir. 2012) (explaining in Title VII case where the plaintiff chose to pursue
only but for causation, not mixed motive, that “nothing in Title VII requires a plaintiff to show
that illegal discrimination was the sole cause of an adverse employment action”); Alaniz v.
Zamora-Quezada, 591 F.3d 761, 777 (5th Cir. 2009) (rejecting defendant’s challenge to Title VII
jury instructions because “a ‘but for’ cause is simply not synonymous with ‘sole’ cause.”); Miller
v. Am. Airlines, Inc., 525 F.3d 520, 523 (7th Cir. 2008) (“The plaintiffs do not have to show,
however, that their age was the sole motivation for the employer's decision; it is sufficient if age
was a “determining factor” or a “but for” element in the decision.”).
153
Nassar, 133 S. Ct. at 2545.
154
See, e.g., Henry v. Wyeth Pharm., 616 F.3d 134, 148 (2d Cir. 2010) (ruling that jury
instruction erroneous where it did not allow finding that decisionmakers had requisite knowledge
of plaintiff’s protected activity based on evidence they acted under instructions from management
officials who had knowledge).
155
Compare Zokari v. Gates, 561 F.3d 1076, 1081-82 (10th Cir. 2009) (holding that
plaintiff failed to adduce any evidence that employer knew he had refused English class because
he believed employer’s suggestion to attend was discriminatory) with Hennagir v. Utah Dep’t of
Corr., 587 F.3d 1255 (10th Cir. 2010) (holding that given employer’s awareness of plaintiff’s
51
an employer may contend that it was not motivated by retaliation but by a legitimate
unrelated reason, such as: poor job performance or misconduct; 156 inadequate
qualifications for the position sought; 157 or, with regard to negative job references,
truthfulness of the information in the reference. 158 The employer will prevail if it
produces credible unrebutted evidence that the adverse action was based on a legitimate
reason, such as excessive absenteeism, and the employee cannot show other evidence of
retaliation, such as more favorable treatment of another employee who had a similar
record of absenteeism but had not engaged in protected activity. 159
The charging party may discredit the defendant’s explanation and demonstrate a
causal connection between the prior protected activity and the challenged adverse action
by what one appellate court has described as a “‘convincing mosaic’” of circumstantial
evidence that would support the inference of retaliatory animus. 160 The Commission has
interpreted and applied this concept to mean that a charging party may cite different
charge, that plaintiff’s supervisor was specifically named as a transgressor in the charge, and that
the supervisor lowered the plaintiff’s performance evaluation the day after the employer received
the charge, a reasonable jury could infer that the supervisor was aware of the charge when he
lowered the evaluation).
156
Brown v. City of Jacksonville, 711 F.3d 883 (8th Cir. 2013) (concluding that
employer was not liable for retaliation based on evidence that termination was based on plaintiff’s
mistreatment of co-workers and inefficient work performance); Hypolite v. City of Hous., 493
Fed. App’x. 597, 606 (5th Cir. Oct. 15, 2012) (concluding that evidence showed suspension was
not motivated by retaliatory animus but by employee’s using e-mail improperly and making racial
slurs).
157
E.g., Hoppe v. Lewis Univ., 692 F.3d 833 (7th Cir. 2012) (concluding that employer
had legitimate, non-retaliatory reason for firing aviation ethics teacher because she had never
worked in aviation field, lacked formal aviation training, and had no relevant degrees, regardless
of her past experience teaching and positive student reviews); but see Patrick v. Ridge, 394 F.3d
311 (5th Cir. 2004) (holding that employer’s assertion that applicant for promotion was “not
sufficiently suited” was vague and, if left unexplained, might not even qualify as a
nondiscriminatory reason).
158
E.g., Fields v. Phillips Sch. of Bus. & Tech., 870 F. Supp. 149 (W.D. Tex.), aff’d
mem., 59 F.3d 1242 (5th Cir. 1994) (concluding that employer established that negative reference
for plaintiff, a former employee, was based on the former supervisor’s personal observations of
plaintiff during his employment and contemporary business records documenting those
observations).
159
Miller v. Vesta, Inc., 946 F. Supp. 697 (E.D. Wis. 1996).
160
Cloe v. City of Indianapolis, 712 F.3d 1171, 1181 (7th Cir. 2013) (citation omitted);
see also Muñoz v. Sociedad Española de Auxilio Mutuo y Beneficiencia de Puerto Rico, 671 F.3d
49, 56 (1st Cir. 2012) (“When all of these pieces are viewed together and in [plaintiff’s] favor,
they form a mosaic that is enough to support the jury’s finding of retaliation” under the ADEA
even though challenged termination occurred five years after he filed his ADEA lawsuit.).
52
pieces of evidence which, in combination, are sufficient to allow an inference of
retaliatory intent. 161 The pieces of that “‘mosaic’” may include, for example, suspicious
timing, verbal or written statements, comparative evidence that a similarly situated
employee was treated differently, falsity of the employer’s proffered reason for the
adverse action, or any other “bits and pieces” from which an inference of retaliatory
intent might be drawn. 162
Suspicious timing. The causal link between the adverse action and the protected
activity is often established by evidence that the adverse action occurred shortly after the
plaintiff engaged in protected activity. 163 However, such temporal proximity is not
necessary to establish a causal link. Even if the time between the protected activity and
the adverse action was lengthy, other evidence of a retaliatory motive can establish the
link. For example, a 14-month interval between the plaintiff’s filing of an EEOC charge
and her termination would not conclusively disprove retaliation where the plaintiff’s
manager frequently mentioned the EEOC charge during the interim, and termination
occurred just two months after the EEOC dismissed her charge and issued a notice of
right to sue. 164 Similarly, there may be other evidence that the protected activity, even if
it occurred many years earlier, was in fact the motive for the challenged action. 165 For
161
Petitioner v. Dep’t of Interior, EEOC Petition No. 0320110050 (July 16, 2014)
(adopting and applying the “convincing mosaic” standard, the Commission rejected the
employer’s contention that this standard requires plaintiff to make all the evidence fit in an
interlocking pattern with no spaces).
162
Cloe, 712 F.3d at 1181.
163
See, e.g., Quiles-Quiles v. Henderson, 439 F.3d 1 (1st Cir. 2006) (concluding that jury
could infer causation from evidence that harassment by supervisors intensified shortly after
plaintiff filed an internal complaint); Hossaini v. W. Mo. Med. Ctr., 97 F.3d 1085 (8th Cir. 1996)
(holding that a reasonable factfinder could infer that defendant’s explanation for plaintiff’s
discharge was pretextual where defendant launched investigation into allegedly improper conduct
by plaintiff shortly after she engaged in protected activity).
164
Shirley v. Chrysler First, Inc., 970 F.2d 39 (5th Cir. 1992). See also Benuzzi v. Bd. of
Educ., 647 F.3d 652, 665 (7th Cir. 2011) (holding that retaliation could be shown where
discipline imposed for “petty misdeeds” that allegedly occurred months earlier); Abbott v. Crown
Motor Co., 348 F.3d 537 (6th Cir. 2003) (ruling that causation shown notwithstanding 11-month
interim because supervisor stated his intention to “get back at” those who had supported the
discrimination allegations); Kachmar v. Sunguard Data Sys., 109 F.3d 173, 178 (3d Cir. 1997)
(ruling that district court erroneously dismissed plaintiff’s retaliation claim because termination
occurred nearly one year after her protected activity; when there may be reasons why adverse
action was not taken immediately, absence of immediacy does not disprove causation).
165
Muñoz, 671 F.3d at 56-57 (concluding that evidence supported jury’s finding that
plaintiff, a doctor, was discharged in retaliation for ADEA lawsuit filed 5 years earlier; evidence
showed plaintiff was fired for common conduct for which others were not disciplined, he was not
given an opportunity to defend himself, and had been threatened years earlier by one of the
53
example, there may have been a recent fact-finding conference or development in
ongoing litigation that provoked or stoked retaliatory animus and motivated the adverse
action, or evidence that the protected activity occurred much earlier, but the opportunity
for the adverse action did not present itself until the alleged retaliatory action occurred. 166
Verbal or written statements. Verbal or written statements made by the
individuals recommending or approving the challenged adverse action may reveal a
retaliatory intent by revealing inconsistencies, pre-determined decisions, or other
indications that the reasons given for the adverse action are false. 167 Such statements
may have been made to the charging party or to others. 168
Comparative evidence. Evidence that the employer treated more favorably a
similarly situated employee who had not engaged in protected activity also would support
an inference that the adverse action was motivated by retaliation. For example, where a
disciplinary action was taken for alleged retaliatory reasons, evidence that another
employee who committed the same infraction was not disciplined, or was not disciplined
as severely, could be sufficient to infer a retaliatory motive. 169 Similarly, absent evidence
of new performance problems, a retaliatory motive might be inferred where an employee
herself had higher performance appraisals prior to engaging in protected activity. 170
decisionmakers that if he filed the suit he would never work at the hospital or in Puerto Rico
again).
166
Rao v. Tex. Parks & Wildlife Dep’t, 2014 WL 1846102, 122 Fair Empl. Prac. Cas.
(BNA) 1484, (S.D. Tex. May 8, 2014) (holding that denial of promotion could be shown to be in
retaliation for complaint filed three years earlier, where decisionmaker said to plaintiff “you
didn’t do anything wrong, but you filed that complaint”).
167
Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840 (7th Cir. 2007) (ruling that
inconsistent explanations by employer presented issue for jury).
168
See, e.g., Burnell v. Gates Rubber Co., 647 F.3d 704, 709-10 (7th Cir. 2011)
(concluding that evidence of plant manager’s statement that African-American employee was
“playing the race card” was sufficient to deny employer’s motion summary judgment on claim of
retaliatory termination for race discrimination complaints); Abbott, 348 F.3d at 544 (ruling that
summary judgment for employer on retaliation claim was improper where evidence showed
supervisor stated he would “get back at those who had supported the charge of discrimination,”
and had told another individual he fired plaintiff because he had put his nose in other people's
business by testifying in support of co-worker’s discrimination allegations).
169
Spengler v. Worthington Cylinders, 615 F.3d 481, 494-95 (6th Cir. 2010) (concluding
that evidence showed that plaintiff, who was discharged after raising an age discrimination
allegation, was a valuable employee and that the rule pursuant to which he was terminated had
been selectively enforced).
170
See supra notes 113 & 122.
54
Inconsistent or shifting explanations. If the employer changes its stated reason for
the challenged adverse action over time or in different settings (e.g., reasons stated to
employee in termination meeting differ from reasons employer cites in position statement
filed with EEOC), pretext may be inferred. However, the inference of discrimination
drawn from such changes will be undermined to the extent the inconsistencies are
innocuous or can be credibly explained by the employer (e.g., additional information is
discovered).
Other evidence that employer’s explanation was pretextual. The respondent’s
justification will fail if its explanation is not believable or there is other evidence that the
explanation is a pretext designed to hide the true retaliatory motive. 171 Any kind of
evidence that undermines the believability of the employer’s justification or otherwise
reveals a retaliatory motive can be used to show pretext. If an employer’s proffered
explanation is shown to be false, that can be sufficient to infer that the real reason was
retaliation, but a fact finder may alternatively conclude that the falsehood was given for a
different reason (e.g., to cover up embarrassing facts) and does not show a retaliatory
motive. Likewise, a negative job reference about an individual who engaged in protected
activity does not constitute unlawful retaliation unless the reference was based on a
retaliatory motive. The truthfulness of the information in the reference may serve as a
defense unless there is proof of pretext, 172 such as evidence that the former employer
routinely declines to offer information about its former employees’ job performance, but
171
See, e.g., Tuli v. Brigham & Women’s Hosp., 656 F.3d 33 (1st Cir. 2011) (concluding
that although supervisor contended that his actions were designed simply to give credential
review committee a legitimate assessment of complaints against plaintiff, the evidence showed he
overstated his objections and failed to disclose that he had been the subject of several prior
complaints by plaintiff, which could lead the jury to conclude that his motives were attributable to
discriminatory and/or retaliatory animus); Loudermilk v. Best Pallet Co., 636 F.3d 312 (7th Cir.
2011) (ruling that pretext could be shown because between the EEOC investigation and the
litigation, the employer shifted its explanation for plaintiff’s termination from reduction in force
to mutual decision and then to violation of a company policy); Spengler, 615 F.3d at 495 (ruling
that pretext could be shown because employer’s explanation that seasonal employees are
discharged after 12 months was inconsistent with testimony that the policy was only applied in
the event of a production slowdown, which had not occurred); Franklin v. Local 2 of the Sheet
Metal Workers Int’l Ass’n, 565 F.3d 508 (8th Cir. 2009) (ruling that defendant’s reading aloud at
union meetings of legal bills identifying employees who had filed discrimination charges against
the union may have been retaliatory, since degree of detail disclosed was not necessary given
proffered non-retaliatory explanation that it was done in order to obtain member approval for
expenditures).
172
See Jute, 420 F.3d at 178-79 (allowing retaliation claim about negative reference to
proceed where the information provided by the former employer was false).
55
departed from that policy with regard to an individual who engaged in protected
activity. 173
EXAMPLE 21
Explanation for Non-selection Was
Pretext for Retaliation
CP alleges that R denied her a promotion because she
opposed the under-representation of women in
management jobs and was therefore viewed as a
“troublemaker.” R asserts that the selectee was better
qualified for the job because she had a master’s degree,
whereas CP only had a bachelor’s degree. The EEOC
investigator finds reasonable cause to believe that this
explanation is pretextual because CP has significantly
greater experience working at R Company and
experience has long been R’s most important criterion
for selecting managers.
EXAMPLE 22
Negative Reference Was Truthful, Not Retaliatory
CP alleges that R gave him a negative job reference
because he had filed an EEOC charge. R produces
evidence that its negative statements to CP’s prospective
employer were honest assessments of CP’s job
performance. Absent proof of pretext, the investigator does
not find reasonable cause to believe that retaliation has
occurred.
EXAMPLE 23
Manager Violated Company Neutral Reference Policy
– Evidence of Retaliatory Intent
Same as prior example, except there is evidence that R
routinely follows a so-called “neutral reference” policy,
declining to offer information about former employees’
job performance, instead simply confirming dates of
employment. R fails to offer a credible explanation for
why it violated this policy with regard to CP. Therefore,
173
Cf. Thomas v. iStar Financial, Inc., 448 F. Supp. 2d 532, 536 (S.D.N.Y. 2006) (ruling
that providing a neutral reference was not evidence of retaliatory motive where such references
are consistent with established company policy).
56
the EEOC finds reasonable cause to believe that R’s
stated reasons constituted pretext.
EXAMPLE 24
Manager Advised No-Hire Based on
Prior EEO Activity – Evidence of Retaliatory Intent
CP filed suit against Respondent A, alleging that her
supervisor sexually harassed and constructively discharged
her. The suit was ultimately settled. CP applied for a new
job with Respondent B and received a conditional offer
subject to a reference check. When B called A, CP’s
former supervisor said that CP was a "troublemaker,"
started a sex harassment lawsuit, and was not anyone B
"would want to get mixed up with." B then withdrew its
conditional offer. CP, suspecting that A gave her a
negative reference, filed retaliation charges against both A
and B. The EEOC investigator discovered notes
memorializing the phone conversation between A and B.
These notes prove that A’s negative job reference was
based on CP's protected activity. Although the notes do not
establish B’s motive for rejecting CP, B’s withdrawal of the
conditional job offer shortly after learning of her protected
activity is strong evidence that B, too, had a retaliatory
motive.
Based on this evidence, the EEOC finds
reasonable cause to believe that A provided a negative job
reference because of a retaliatory motive, and B rescinded
its job offer based on CP’s prior protected activity.
D. Liability
Employer liability requires either that the retaliation was committed
by someone with explicit or implicit delegated authority, or that the
employer granted the individual who engaged in the retaliation power
that materially assisted him in carrying out the retaliation.
In the vast majority of situations, an employer’s liability for retaliatory conduct is
not at issue, since the challenged conduct entailed the exercise of official responsibilities
taken by a supervisor or other agent. 174 If retaliatory conduct, however, does not involve
the explicit or implicit abuse of delegated authority, then the applicable liability standard
174
See, e.g., 42 U.S.C. § 2000e-(b) (Title VII defines “employer” as including “any
agent”); Faragher v. City of Boca Raton, 524 U.S. 775, 790 (1998) (holding that when a
supervisor makes a decision based on delegated authority, “he ‘merges’ with the employer, and
his act becomes that of the employer”).
57
turns on whether the power that the employer granted the individual who engaged in the
retaliation materially assisted him in carrying out the retaliation. 175 Most commonly, this
will apply if the retaliator had supervisory authority over the targeted individual.
However, because unlawful retaliation is not limited to conduct affecting terms or
conditions of employment, a retaliator may be materially assisted by non-supervisory
forms of authority, such as the authority to decide whether to investigate an inmate’s
alleged death threats against a law enforcement officer and his family. 176
If delegated authority materially assisted the retaliator in carrying out his
retaliation, then the employer is automatically liable for the retaliation, and there are no
defenses. Under this standard, employers are subject to more stringent liability as
compared to that imposed for supervisor discriminatory harassment (e.g., based on race,
sex, or disability) creating a hostile work environment, which limits employer liability for
supervisor harassment in some situations where the targeted employee unreasonably
failed to complain about the supervisor’s conduct. 177 Fundamental to the employer’s
ability to establish this affirmative defense to liability for a hostile work environment is
that the employee did not reasonably fear retaliation and therefore was not reasonably
deterred from complaining. 178 An employer could not establish this defense if an
employee has been subjected to unlawful retaliation. Therefore, employers are
automatically liable for retaliation by supervisors and other agents whose retaliation was
enhanced by delegated authority.
Finally, if a retaliator’s delegated authority was insufficient to justify automatic
employer liability, then the employer is liable if it unreasonably failed to prevent the
retaliation 179 or if it failed to take appropriate corrective action once it knew, or
175
See Vance v. Ball State Univ., 133 S. Ct. 2434, 2461 (2013) (Ginsburg, J., dissenting)
(quoting Restatement (Second) of Agency § 219(2)(d) (a principal is liable for agent’s tort if
agent was “aided in accomplishing the tort by the existence of the agency relation”)).
176
See Rochon v. Gonzales, 438 F.3d 1211, 1213 (D.C. Cir. 2006), cited in Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 63-64 (2006).
177
See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v.
Ellerth, 524 U.S.742 (1998).
178
See Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 555 U.S. 271,
279 (2009) (noting that fear of retaliation is “leading reason” employees do not complain about
discrimination) (quoting Deborah L. Brake, Retaliation, 90 MINN. L. REV. 18, 20 (2005) (internal
quotation marks omitted)); EEOC v. Mgmt. Hospitality of Racine, Inc., 666 F.3d 422, 437 (7th
Cir. 2012) (holding that employee may have been justified in not reporting assistant manager’s
harassment to district manager because she had previously been treated harshly by a different
harasser after reporting his conduct to the district manager).
179
Vance v. Ball State Univ., 133 S. Ct. 2434, 2454 (holding that employer is liable for
harassment if it was negligent in permitting it to occur).
58
reasonably should have known, about the retaliation. 180 For instance, in one case in
which an employee was subjected to retaliation by coworkers after complaining about
sexual harassment by a well-liked supervisor, the court held that a jury could find that the
employer was liable for the retaliation based on evidence that senior supervisors knew
about the retaliation but did not take any action, and one supervisor even speculated that
the retaliation would get much worse. 181
III. ADA INTERFERENCE PROVISION
The ADA prohibits not just retaliation, but also “interference” with
the exercise or enjoyment of ADA rights. The interference provision
is broader than the anti-retaliation provision, protecting any
individual who is subject to coercion, threats, intimidation, or
interference with respect to ADA rights.
In addition to retaliation, the ADA prohibits “interference” triggered by any
attempted or actual exercise or enjoyment of ADA rights, or by assistance of another in
exercising or enjoying those rights. 182 The scope of the interference provision is broader
180
See, e.g., Hawkins v. Anheuser- Busch, Inc. 517 F.3d 321, 346-47 (6th Cir. 2008)
(ruling that coworker retaliation claims are actionable, and noting that the analysis for coworker
harassment liability should apply, requiring that supervisors or management had actual or
constructive knowledge of the conduct and “have condoned, tolerated, or encouraged acts of
retaliation, or have responded ... so inadequately that the response manifests indifference or
unreasonableness....”); Noviello v. City of Boston, 398 F.3d 76, 89 (1st Cir. 2005) (holding
“explicitly that a [coworker-created] hostile work environment, tolerated by the employer, is
cognizable as a retaliatory adverse employment action” under Title VII). But see Hernandez v.
Yellow Transp., Inc., 670 F.3d 644 (5th Cir. 2012) (holding that employer is liable for coworker
retaliation only if retaliatory conduct was “furtherance of the employer’s business,” which
requires “direct relationship between the allegedly discriminatory conduct and the employer’s
business”) (quoting Long v. Eastfield Coll., 88 F.3d 300, 306 (5th Cir. 1996) (internal quotation
marks omitted)). The Commission disagrees with the Fifth Circuit’s liability standard for
coworker retaliation in Hernandez and Long. The Supreme Court has long recognized that
employers can be liable under EEO law for failing to take reasonable steps to protect employees
against the conduct of coworkers and other individuals who are acting without the employer’s
authorization. See Faragher, 524 U.S. at 799 (citing uniform case law and EEOC policy holding
employer liable for discriminatory coworker conduct that employer knew or should have known
about). Given that the EEO laws provide broader protections against retaliation than against
substantive discrimination, employers cannot logically face more stringent liability for coworker
discriminatory harassment than for coworker retaliation. See Hawkins, 517 F.3d at 346 (applying
liability standards for coworker harassment to coworker retaliation and citing similar decisions
from the 1st, 2d, 3d, 7th, 9th, and 10th Circuits). Therefore, the Fifth Circuit standard cannot be
reconciled with well-established legal principles.
181
Noviello, 398 F.3d at 96-97.
182
The ADA interference provision uses the same language as a parallel provision in the
Fair Housing Act, and Congress apparently intended it to be interpreted in the same way. H.R.
59
than the anti-retaliation provision, protecting any individual who is subject to coercion,
threats, intimidation, or interference with respect to ADA rights. 42 U.S.C. § 12203(b).
As with ADA retaliation, an applicant or employee need not establish that he is an
“individual with a disability” or “qualified” in order to prove interference under the
ADA. 183
The statute, regulations, and court decisions have not separately defined the terms
“coerce,” “intimidate,” “threaten,” and “interfere.” Rather, as a group, these terms have
been interpreted to include at least certain types of actions which, whether or not they rise
to the level of unlawful retaliation, are nevertheless actionable as interference. 184 Of
course, many instances of employer threats or coercion might in and of themselves be
actionable under the ADA as a denial of accommodation or as retaliation, and many
examples in this section could be actionable under those theories of liability as well.
However, because the “interference” provision is broader, it will reach even those
instances when conduct does not meet the “materially adverse” standard required for
retaliation.
Examples of conduct by an employer prohibited under the ADA as interference
would include:
•
coercing an individual to relinquish or forgo an accommodation to which
he or she is otherwise entitled;
Rep. No. 101-485 (II), at 138 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 421 (“The Committee
intends that the interpretation given by the Department of Housing and Urban Development to a
similar provision in the Fair Housing Act…be used as a basis for regulations for this section.”).
The National Labor Relations Act (NLRA) also contains an interference provision with similar
language to the ADA provision. See 29 U.S.C. §158(a)(1) (making it unlawful under the NLRA
for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in [the Act]”).
183
See Brown v. City of Tucson, 336 F.3d 1181, 1192 (9th Cir. 2003) (holding that in
comparison to the retaliation provision, the interference provision protects a broader class of
persons against less clearly defined wrongs; demands that plaintiff stop taking her medications
and perform duties contrary to her medical restrictions or be forcibly retired constituted
actionable threats).
184
The EEOC regulation implementing the interference provision additionally includes
the term “harass.” 29 C.F.R. § 1630.12(b) (“unlawful to coerce, intimidate, threaten, harass, or
interfere with any individual in the exercise or enjoyment of, or because the individual aided or
encouraged any other individual in the exercise of, any right granted or protected by this part”).
The inclusion of the term “harass” in the regulation does not create a separate cause of action for
disability-based or retaliatory harassment (which is already actionable under the ADA), but rather
is intended to characterize the type of adverse treatment that may in some circumstances violate
the interference provision.
60
•
intimidating an applicant from requesting accommodation for the
application process by indicating that such a request will result in the
applicant not being hired;
•
threatening an employee with loss of employment or other adverse
treatment if he does not “voluntarily” submit to a medical examination or
inquiry that is otherwise prohibited under the statute;
•
issuing a policy or requirement that purports to limit an employee’s rights
to invoke ADA protections (e.g., a fixed leave policy that states “no
exceptions will be made for any reason”);
•
interfering with a former employee’s right to file an ADA lawsuit against
the former employer by stating that a negative job reference will be given
to prospective employers if the suit is filed; and
•
subjecting an employee to unwarranted discipline, demotion, or other
adverse treatment because he assisted a co-worker in requesting
reasonable accommodation.
The interference provision does not apply to any and all threats or statements that
an individual finds intimidating. 185 It only prohibits threatening or coercive conduct that
is reasonably likely to interfere with the exercise or enjoyment of ADA rights, such as
threatening an employee with transfer, demotion, or forced retirement unless the
individual forgoes a statutorily-protected accommodation.
EXAMPLE 25
Manager Pressures Employee Not to Advise Co-worker
of Right to Reasonable Accommodation
Joe, a mail room employee with an intellectual disability, is
having difficulty remembering the supervisor’s instructions
that are delivered orally at morning staff meetings. Dave, a
co-worker, explains to Joe that he may be entitled to
written instructions as a reasonable accommodation under
the ADA and then takes Joe to the human resources
department to assist him in requesting accommodation.
When the supervisor learns what has happened, he is
annoyed that he may have to do “more work” by providing
written instructions, and he tells Dave that if he continues
to “stir things up” by "putting foolish ideas in Joe's head"
185
Brown, 336 F.3d at 1192-93 (ruling that the ADA’s interference provision is not so
broad as to prohibit “‘any action whatsoever that in any way hinders a member of a protected
class’”) (citation omitted).
61
with this “accommodation business,” he will regret it.
Based on this evidence, the EEOC finds reasonable cause
to believe that the supervisor’s threat against Dave for
assisting another employee in exercising his rights under
the ADA is a violation of the ADA interference provision.
EXAMPLE 26
Manager Refuses to Consider Accommodation
Unless Employee Tries Medication First
When reviewing medical information received in support
of an employee’s request for accommodation of her
depression, the employer learns that, while the employee’s
physician had previously prescribed a medication that
might eliminate the need for the requested accommodation,
the employee chose not to take the medication because of
its side effects. The employer advises the employee that if
she does not try the medication first, he will not consider
the accommodation. The EEOC finds reasonable cause to
believe that the employer’s actions constitute both denial of
reasonable accommodation and interference in violation of
the ADA.
A threat does not have to be carried out in order to violate the interference
provision, and an individual does not actually have to be deterred from exercising or
enjoying ADA rights in order for the interference to be actionable. 186
EXAMPLE 27
Manager Threatens Employee Against Requesting
Accommodation
An employee with a vision disability needs special
technology in order to use a computer at work. She
requests paid administrative leave as an accommodation to
visit an off-site vocational technology center with
employer's human resources manager in order to decide on
appropriate equipment, as well as for several subsequent
appointments at the center during which she will be trained
on the computer program selected. Her supervisor objects,
but the human resources manager advises him that this is
part of the process of accommodating the employee with
the equipment under the ADA, and that the leave should be
186
Nevertheless, conclusory allegations -- without more -- are insufficient to state a
violation of 503(b). Id. at 1193.
62
granted. The supervisor calls the employee into his office
and tells her that he will allow it this time, but if she ever
brings up the ADA again, she “will be sorry.” The EEOC
finds reasonable cause to believe that the supervisor’s
threat constitutes interference with the exercise of ADA
rights in violation of the statute, even if not accompanied or
followed by any adverse action.
EXAMPLE 28
Manager Conditions Accommodation on Withdrawal of
Formal Accommodation Request
After a lengthy interactive process, an employee with
multiple sclerosis is granted a change in schedule as an
accommodation.
When her condition subsequently
worsens, she requests additional accommodations,
including telecommuting on days when her symptoms flare
up and prevent her from walking. The employer has a
policy that prohibits telework. When her supervisor
consults human resources, he is advised that the ADA may
require making an exception to the usual policy as a
reasonable accommodation, unless it would pose an undue
hardship. Instead of proceeding with the interactive
process, the supervisor tells the employee that if she
withdraws her request for accommodation, he will
informally allow her to work from home one day per week,
but that, if she persists with her formal accommodation
request, he will tell human resources that her job cannot be
performed from home. The EEOC finds reasonable cause
to believe that the supervisor’s actions constitute
interference in violation of the ADA.
EXAMPLE 29
Manager Threatens Employee with Adverse Action
if She Does Not Forgo Accommodation
Previously Granted
Due to post-traumatic stress disorder following a nighttime
attack, an employee is accommodated with shift
assignments that assure that she can commute to and from
work during daytime hours. She is subsequently assigned a
new supervisor, who threatens to have her transferred,
demoted, or placed on medical retirement if she does not
work a “normal schedule.” Based on these facts, the EEOC
finds reasonable cause to believe that the supervisor has
violated the interference provision of the ADA.
63
EXAMPLE 30
Refusal to Consider Applicant Unless He Submits to
Unlawful Pre-Employment Medical Examination
A job applicant declines an interviewer’s request to submit
to a pre-offer medical examination, citing the ADA’s
prohibition against conducting medical examinations prior
to making a conditional offer of employment. The
interviewer refuses to consider the application without the
examination, so the applicant submits to it. Regardless of
whether or not the applicant is qualified or is hired, the
EEOC finds reasonable cause to believe that the employer
engaged in interference as well as an improper disabilityrelated examination in violation of the ADA.
IV. REMEDIES
A. Temporary or Preliminary Relief
The EEOC has the authority to sue for temporary or preliminary relief before
completing its processing of a retaliation charge. Section 706(f)(2) of Title VII187
authorizes the Commission to seek temporary injunctive relief before final disposition of
a charge when a preliminary investigation indicates that prompt judicial action is
necessary to carry out the purposes of Title VII. Section 107 of the ADA and section 207
of GINA incorporate this provision. While the ADEA and the EPA do not authorize a
court to give interim relief pending resolution of an EEOC charge, the EEOC can seek
such relief as part of a lawsuit for permanent relief, pursuant to Rule 65 of the Federal
Rules of Civil Procedure.
Temporary or preliminary relief allows a court to stop retaliation before it occurs
or continues. Such relief is appropriate if there is a substantial likelihood that the
challenged action will be found to constitute unlawful retaliation and if the charging party
and/or the EEOC will likely suffer irreparable harm because of the retaliation. Although
courts have ruled that financial hardships are not irreparable, other harms that accompany
loss of a job may be irreparable. For example, in one case, forced retirees showed
irreparable harm and qualified for a preliminary injunction where they lost work and
187
42 U.S.C. § 2000e-5(f)(2) (“Whenever a charge is filed . . . and the Commission
concludes on the basis of a preliminary investigation that prompt judicial action is necessary to
carry out the purposes of this Act, the Commission . . . may bring an action for appropriate
temporary or preliminary relief pending final disposition of such charge.”).
64
future prospects for work, consequently suffering emotional distress, depression, a
contracted social life, and other related harms. 188
EXAMPLE 31
Preliminary Relief Granted to Prohibit Retaliatory
Transfer During Pendency of EEO Case
Plaintiff filed an enforcement action in court to obtain
compliance with the relief obtained in his Title VII national
origin discrimination case.
Within two months, his
employer ordered him to transfer from its Los Angeles
office to its facility in Detroit or be discharged. The court
granted preliminary relief to forestall the alleged retaliatory
transfer and permit plaintiff to retain employment pending
its adjudication of the merits. 189
In addition, a temporary injunction also is appropriate if the respondent’s
retaliation will likely cause irreparable harm to the Commission’s ability to investigate
the charging party’s original charge of discrimination. For example, if the alleged
retaliatory act might discourage others from providing testimony or from filing additional
charges based on the same or other alleged unlawful acts, preliminary relief is
justified. 190
EXAMPLE 32
Preliminary Relief Prohibiting Intimidation of
Witnesses
188
EEOC v. Chrysler Corp., 733 F.2d 1183, 1186 (6th Cir. 1984); see also EEOC v. City
of Bowling Green, 607 F. Supp. 524 (D. Ky. 1985) (granting preliminary injunction preventing
defendant from mandatorily retiring police department employee because of his age; although
plaintiff could have collected back pay and been reinstated at later time, he would have suffered
from inability to keep up with current matters in police department and would have suffered
anxiety or emotional problems due to compulsory retirement).
189
Garcia, 805 F.2d at 1405-06 (9th Cir. 1986).
190
Id. at 1405-06 (ruling that the employer’s retaliation would have a chilling effect on
other employees’ willingness to exercise their rights or testify for plaintiff, and therefore would
cause irreparable harm). See also EEOC v. Peters’ Bakery, 13-CV-04507-BLF (N.D. Cal.
preliminary injunction issued July 2015) (ruling that harassment about the pending claim,
combined with the lack of any lawful reason for discharge, may support entry of a preliminary
injunction prohibiting an employer from terminating an employee during the pendency of a
federal EEO lawsuit, because “permitting [the charging party] to be terminated under such
circumstances may well have a chilling effect on other employees who might wish to file charges
with the EEOC, and thus could interfere with the EEOC’s mission”).
65
During the EEOC’s systemic investigation of sexual
harassment at a large agricultural producer with many lowwage, seasonal employees, the Commission learned that
management was creating an environment of intimidation
to deter current and former employees from cooperating as
witnesses. The court granted the Commission preliminary
relief prohibiting any retaliatory measures against the
EEOC’s potential class members, witnesses, or their family
members, as well as any actions that would discourage free
association with those individuals. It also enjoined the
company from paying or offering to pay for favorable
testimony in the EEOC’s case. 191
B. Compensatory and Punitive Damages for Retaliation
1. Title VII and GINA
Under the Civil Rights Act of 1991, 42 U.S.C. § 1981a, compensatory and
punitive damages are available for a range of violations under Title VII, including
retaliation. A cap on combined compensatory and punitive damages (excluding past
monetary losses) ranges from $50,000 for employers with 15-100 employees, to
$300,000 for employers with more than 500 employees. Section 207 of GINA
incorporates all the same remedies available under Title VII. Punitive damages are
available when a practice is undertaken “with malice or with reckless indifference to the
federally protected rights of an aggrieved individual,” which simply means that the
employer acted in the face of a perceived risk that its actions will violate federal law.
The same evidence used to establish retaliatory intent is often sufficient to establish
malice or reckless indifference under this standard. 192
191
See EEOC v. Evans Fruit Co., Inc., 2010 WL 2594960 (E.D. Wash., June 24, 2010)
(granting EEOC’s request for preliminary injunction while the investigation continues, citing the
likelihood of irreparable injury if alleged witness tampering was allowed to continue, in that “(a)
the Commission’s prosecution of its case is likely to be chilled; (b) the Commission’s
investigation of retaliation charges now pending . . . is likely to be chilled; and (c) current and
past . . . employees are likely to be deterred from exercising their rights under Title VII”).
192
Hunter v. Allis-Chalmers, 797 F.2d 1417, 1425, (7th Cir. 1986) (holding punitive
damages were warranted because the defendant had deliberately fired a worker for making wellfounded complaints with a state FEP agency about persistent acts of racial harassment); Erebia v.
Chrysler Plastic Products Corp., 772 F.2d 1250, 1260 (6th Cir. 1985) (ruling that manager's
threat to hurt plaintiff economically for pursuing his complaints of harassment may constitute
malice).
66
2. ADEA and EPA
Compensatory and punitive damages are available for retaliation claims brought
under the ADEA and the EPA, even though legal relief is more limited for non-retaliation
claims under those statutes. 193 Any compensatory and punitive damages obtained under
the EPA and the ADEA are not subject to statutory caps.
3. ADA and Rehabilitation Act
Title V of the ADA sets forth the retaliation and interference provisions but
contains no remedy provision of its own, instead incorporating for employment claims
the remedies available under Title I of the ADA. The Commission maintains that
compensatory and punitive damages are available for retaliation or interference in
violation of the ADA, because prevailing plaintiffs under Title I of the ADA may recover
compensatory and punitive damages. 194 Pursuant to the Civil Rights Act of 1991,
availability of these damages is assessed under the standards applicable to Title VII, and
also is available under the same terms for Rehabilitation Act. 195 Among courts, there
remains a split of authority regarding whether compensatory and punitive damages are
available for retaliation or interference in violation of the ADA. 196
193
For non-retaliation EPA claims, liquidated damages up to the amount of backpay for
willful violations are available, but not compensatory and punitive damages. Similarly, for nonretaliation ADEA claims, pecuniary damages related to the job are available, but not damages for
emotional distress. However, these limitations do not apply to retaliation claims under those
statutes. The FLSA, as amended in 1977, 29 U.S.C. § 216(b), authorizes broader relief applicable
to retaliation claims under both the EPA and the ADEA, permitting proven compensatory and
punitive damages. See Moore v. Freeman, 355 F.3d 558 (6th Cir. 2004) (discussing availability
of damages under anti-retaliation provision of the FLSA); see also Moskowitz v. Trs. of Purdue
Univ., 5 F.3d 279, 283-84 (7th Cir. 1993) (holding that FLSA amendment allows common law
damages in addition to back wages and liquidated damages where plaintiff is retaliated against for
exercising his rights under the ADEA); Soto v. Adams Elevator Equip. Co., 941 F.2d 543 (7th
Cir. 1991) (holding that FLSA amendment authorizes compensatory and punitive damages for
retaliation claims under the EPA, in addition to lost wages and liquidated damages); Travis v.
Gary Cmty. Mental Health Ctr., 921 F.2d 108 (7th Cir. 1990) (holding punitive and
compensatory damages available for FLSA retaliation claims, but not available for other FLSA
violations; cf. Thomas v. Ala. Home Const., 2008 WL 819288 (11th Cir. Mar. 28, 2008)
(unpublished) (upholding punitive damage award for retaliation under Title VII).
194
42 U.S.C. § 1981a(a)(2).
195
Id.
196
Compare Arredondo v. S2 Yachts, 498 F. Supp. 2d 831, 835 (W.D. Mich. 2007)
(ruling compensatory and punitive damages are available because the ADA retaliation provision
refers to 42 U.S.C. § 12117 for its remedy, which in turn adopts the remedies set forth in Title
VII, specifically 42 U.S.C. § 2000e–5 and 42 U.S.C. § 1981a(a)(2)); Edwards v. Brookhaven Sci.
Assocs., LLC, 390 F. Supp. 2d 225, 236 (E.D.N.Y. 2005) (same); Lovejoy-Wilson v. NOCO
Motor Fuels, Inc., 242 F. Supp. 2d 236, 240-41 (W.D.N.Y. 2003) (same); Ostrach v. Regents of
67
C. Other Relief
Under all the statutes enforced by the EEOC, relief may also potentially include
back pay if the retaliation resulted in termination, constructive discharge, or nonselection, as well as front pay or reinstatement. Equitable relief also frequently sought by
the Commission includes changes in employer policies and procedures, managerial
training, reporting to the Commission, and other measures designed to prevent violations
and promote future compliance with the law.
V. BEST PRACTICES
To reduce the incidence of retaliation, employers can recognize both the potential
for retaliation and the interaction of psychological and organizational characteristics that
contribute to the likelihood of retaliation. While each workplace is different, there are
many different policy, training, and organizational changes that employers may wish to
consider implementing to achieve this goal.
The following are examples of best practices for employers to utilize in an effort
to minimize the likelihood of retaliation violations. Best practices are not themselves
legal requirements, but rather are steps that may help reduce the risk of violations.
A. Written Employer Policies
Employers should maintain a written, plain-language anti-retaliation policy, 197
and provide practical guidance on the employer’s expectations with user-friendly
examples of what to do and not to do. 198 The policy should include:
the Univ. of Cal., 957 F. Supp. 196, 201 (E.D. Cal. 1997) (same), with Rhoads v. Fed. Deposit
Ins. Corp., 94 Fed. Appx. 187, 15 A.D. Cases 960 (4th Cir. Apr. 16, 2004) (unpublished);
Alvarado v. Cajun Operating Co., 588 F.3d 1261 (9th Cir. 2009) (following Salinas v. O’Neill,
286 F.3d 827 (5th Cir. 2002) (ruling that compensatory and punitive damages are not available
for ADA retaliation)); Kramer v. Banc of Am. Sec., LLC, 355 F.3d 961 964-66 (7th Cir. 2004)
(same). Further, several appellate courts, without analyzing the availability of compensatory
damages, have affirmed awards to plaintiffs who have prevailed in retaliation claims under the
ADA. See, e.g., Salitros v. Chyrsler Corp., 306 F.3d 562, 570 (8th Cir. 2002); Muller v. Costello,
187 F.3d 298 (2d Cir. 1999); EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241 (10th Cir. 1999).
197
EEOC Meeting on Retaliation in the Workplace: Causes, Remedies, and Strategies
for Prevention (June 17, 2015) (“EEOC Meeting”) (written statements of Karen M. Buesing,
Partner, Akerman LLP and Sharon L. Sellers, Society for Human Resource Management
(SHRM-SCP), President, SLS Consulting, LLC), http://www.eeoc.gov/eeoc/meetings/6-1715/buesing.cfm and http://www.eeoc.gov/eeoc/meetings/6-17-15/sellers.cfm; Deborah L. Brake,
Retaliation in an EEO World, 89 IND. L.J. 115, 132 (2014) (citing Marc Bendick, Jr., Mary Lou
Egan & Suzanne M. Lofhjelm, Workforce Diversity Training: From Anti-Discrimination
Compliance to Organizational Development, 24 HUM. RESOURCE PLAN., no. 2, 2001 at 10, 11);
Donna Rutter, Managing an Employee Litigant: What to do to and How to Avoid Retaliation
Claims, 8 PSYCHOLOGIST-MANAGER J., 141, 153 (2005); Stephen J. Vodanovich & Chris
68
•
examples of retaliation that managers may not otherwise realize are
actionable, including actions that would not be cognizable as
discriminatory disparate treatment but are actionable as retaliation because
they would deter a reasonable person from engaging in protected
activity; 199
•
proactive steps for avoiding actual or perceived retaliation, including
interactions by managers and supervisors with employees who have
lodged discrimination allegations against them; 200
•
a reporting mechanism for employee concerns about retaliation, including
access to a mechanism for informal resolution; 201 and
•
a clear explanation that retaliation can be subject to discipline, up to and
including termination. 202
Piotrowski, Workplace Retaliation: A Review of Emerging Case Law, 17 The Psychol.-Mgr. J.
71, 76 (2014).
198
Transcript, EEOC Meeting on Retaliation in the Workplace: Causes, Remedies, and
Strategies for Prevention, http://www.eeoc.gov/eeoc/meetings/6-17-15/transcript.cfm (testimony
of Karen Buesing, Partner, Akerman, LLP and Lisa J. Banks, Partner, Katz, Marshall & Banks,
LLP).
199
See supra § II.B. See also Transcript, EEOC Meeting, supra note 198 (testimony of
Banks) (“There has to be more frequent and more effective training on retaliation so that
employers have a better understanding of what they can and cannot do in the face of … protected
activity. But I also think that employees need to be trained as well so that they can understand
how to protect their rights but also to understand that not all actions taken by an employer are
retaliatory even if they occur after protected activity; and also, that complaints of protected
activity will not protect them from legitimate discipline, particularly if it’s already in the works.
So the education and training needs to happen on both sides.”)
200
Id.
201
Brake, supra note 197, at 133 (citing Catherine R. Albiston, Bargaining in the Shadow
of Social Institutions: Competing Discourses and Social Change in Workplace Mobilization of
Civil Rights, 39 LAW & SOC’Y REV. 11, 14-15 (2005)); see also Lilia M. Cortina & Vicky J.
Magley, Raising Voice, Risking Retaliation: Events Following Interpersonal Mistreatment in the
Workplace, 8 J. OCCUPATIONAL HEALTH PSYCH. 247, 263 (2005) (based on study of
repercussions for workers who vocalized complaints of mistreatment by more powerful
colleagues, urging that “[v]ocal resistance to mistreatment should be the right of all employees,
and organizations should empower them to exercise that right and raise their voices without
retribution”).
202
Rutter, supra note 197, at 152-54; Alix Valenti & Lisa A. Burke, Post-Burlington:
What Employers and Employees Need to Know About Retaliation, 22 EMPLOY. RESPONS. RTS. J.
235, 246 (2009).
69
The policy itself also should not include terms that make the employee fear
retaliation, such as warning employees that reports of discrimination found to be false
will subject the worker to disciplinary action. 203
Employers should also determine if they maintain any policies that may deter
employees from engaging in protected activity, such as policies that would impose
materially adverse actions for inquiring, disclosing, or otherwise discussing wages. 204
While most private employers are under no obligation to disclose or make wages public,
actions that deter or punish employees with respect to pay inquiries or discussions may
constitute retaliation.
B. Training
Employers should consider these ideas for training:
•
Train all managers, supervisors, and employees on the employer’s written
anti-retaliation policy. 205
•
Send a message from top management that retaliation will not be tolerated,
provide information on policies and procedures in several different
formats, and hold periodic refresher training. 206
•
Tailor training to address any specific deficits in EEO knowledge and
behavioral standards that have arisen in that particular workplace, 207
ensuring that employees are aware of what conduct is “protected
203
Blair T. Jackson & Kunal Bhatheja, Easy as P.I.E.: Avoiding and Preventing
Vicarious Liability for Sexual Harassment by Supervisors, 62 DRAKE L. REV. 653, 662 (2014)
(citing Williams v. Spartan Communications, Inc., 210 F.3d 364 (4th Cir. 2000) (unpublished)
(finding a sexual harassment complaint policy was ineffective in part due to the threat of
discipline for false reports)).
204
Cf. Transcript, EEOC Meeting, supra note 198 (testimony of Buesing and Banks).
205
EEOC Meeting, supra note 197 (written statements of Buesing and Sellers); Brake,
supra note 1987 at 132 (citing Marc Bendick, Jr., Mary Lou Egan & Suzanne M. Lofhjelm,
Workforce Diversity Training: From Anti-Discrimination Compliance to Organizational
Development, 24 HUM. RESOURCE PLAN., no. 2, 2001, at 10, 11); Rutter, supra note 197 at 152.
See also Vodanovich & Piotrowski, supra note 197 (make supervisors “cognizant of what
constitutes retaliatory behavior”).
206
Valenti & Burke, supra note 202, at 246-47.
207
Rutter, supra note 197, at 152.
70
activity” 208 and providing examples on how to avoid problematic
situations that have actually manifested or might be likely to do so. 209
208
•
Offer explicit instruction on alternative pro-active, EEO-compliant ways
these situations could have been handled. 210 In particular, managers and
supervisors may benefit from scenarios and advice for ensuring that
discipline and performance evaluations of employees are motivated by
legitimate, non-retaliatory reasons. 211
•
Emphasize that those accused of EEO violations, and in particular
managers and supervisors, cannot act on feelings of revenge or
retribution, 212 although also acknowledge that those emotions may occur.
•
Do not limit training to those who work in offices. Provide EEO
compliance and anti-retaliation training for those working in a range of
workplace settings, including for example employees and supervisors in
lower-wage manufacturing and service industries, manual laborers, and
farm workers. 213
•
Consider overall efforts to encourage workplace civility, which some
social scientists have suggested may help curb retaliatory behavior. 214
Valenti & Burke, supra note 202, at 248.
209
EEOC Meeting, supra note 197 (written statements of Buesing and Sellers); Valenti
and Burke, supra note 202, at 247.
210
Brake, supra note 197, at 132.
211
Karl Aquino, Robert J. Bies, & Thomas M. Tripp, Getting Even or Moving On?
Power, Procedural Justice, and Types of Offense as Predictors of Revenge, Forgiveness,
Reconciliation, and Avoidance in Organizations, 91 J. OF APPLIED PSYCHOL. 653, 666 (2006).
212
Valenti and Burke, supra note 202 at 247.
213
Transcript, EEOC Meeting, supra, note 198 (testimony of Daniel Werner Sr.,
Supervising Attorney, Southern Poverty Law Center).
214
See, e.g., Vodanovich & Piotrowski, supra note 197, at 77 (“Establish an
organizational climate that encourages civility and condemns retaliatory actions.”); Andra
Gumbus & Patricia Meglich, Lean and Mean: Workplace Culture and the Prevention of
Workplace Bullying, 13 J. APPLIED BUS. & ECON. 11, 15-18 (2012). We nonetheless recognize
that EEO laws do not impose a “general civility code” on the workplace. Burlington N. v. White,
548 U.S. at 68 (quoting Oncale v. Sundower Offshort Servs., Inc., 523 U.S. 75, 80 (1998)).
71
C. Provide Anti-retaliation Advice and Individualized Support for
Employees, Managers, and Supervisors
An automatic part of an employer’s response and investigation following EEO
allegations should be to provide information to all parties and witnesses regarding the
anti-retaliation policy, how to report alleged retaliation, and how to avoid engaging in
it. 215 As part of this debriefing, managers and supervisors alleged to have engaged in
discrimination should be provided with guidance on how to handle any personal feelings
about the allegations when carrying out management duties or interacting in the
workplace.
•
Remind supervisors and managers that it is best not to discuss an
employee’s pending EEO matters with other employees and managers, 216
but that they are welcome to access designated employer resources for
support. 217
•
Provide tips for avoiding actual or perceived retaliation, 218 as well as
access to a resource individual for advice and counsel on managing the
situation. 219 This may occur as part of the standard debriefing of a
manager, supervisor, or witness immediately following an allegation
having been made, ensuring that those alleged to have discriminated
received prompt advice from a human resources, EEO, or other designated
manger or specialist both to air any concerns or resentments about the
situation and to assist with strategies for avoiding actual or perceived
retaliation going forward.
D. Proactive Follow-Up
Employers may wish to check in with employees, managers, and witnesses during
the pendency of an EEO matter to inquire if there are any concerns regarding potential or
perceived retaliation, and to provide guidance. 220 This provides an opportunity to
215
EEOC Meeting, supra note 197, and Transcript, EEOC Meeting, supra note 198.
216
Rutter, supra note 197, at 152-154.
217
EEOC Meeting, supra note 197 (written statement of Banks).
218
EEOC Meeting, supra note 197 (written statement of Buesing).
219
Brake, supra note 197, at 131-35; Transcript, EEOC Meeting, supra note 198
(testimony of Banks).
220
EEOC Meeting, supra note 197 (written statement of Sellers); see Valenti & Burke,
supra note 202, at 246 (provide updates to complainants about the status of their claims, and HR
oversight of internal investigation process to “ensure objective, timely and professional handling
of … complaints”).
72
identify issues before they fester, and to re-assure employees and witnesses of the
employer’s commitment to protect against retaliation. It also provides an opportunity to
give ongoing support and advice to those managers and supervisors who may be named
in discrimination matters that are pending over a long period of time prior to reaching a
final resolution.
E. Review Consequential Employment Actions to Ensure EEO Compliance
Consider ensuring that a human resources or EEO specialist, a designated
management official, in-house counsel, or other resource individual review proposed
employment actions of consequence to ensure they are based on legitimate nondiscriminatory, non-retaliatory reasons. 221 These reviewers should:
• Require decision-makers to “know, understand, and easily identify” their
reasons for taking consequential actions, and ensure that necessary
documentation supports the decision. 222
• Scrutinize performance assessments to ensure they have a sound factual
basis and are free from unlawful motivations.
Additional suggestions for reducing incidences of retaliation are available in the
EEOC
FACT
SHEET,
RETALIATION
–
MAKING
IT
PERSONAL,
http://www.eeoc.gov/laws/types/retaliation_considerations.cfm.
221
Aquino, Bies, & Tripp, supra note 211, at 666; Valenti & Burke, supra note 202 at
222
Valenti & Burke, supra note 202, at 247-48.
247.
73

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